Tokar v. Weissberg, 2016–07850
| Decision Date | 25 July 2018 |
| Docket Number | 2016–07850,Index No. 24952/04 |
| Parties | Patricia TOKAR, plaintiff, v. David J. WEISSBERG, etc., respondent; Stanley Tokar, as administrator of the estate of Patricia Tokar, deceased, nonparty-appellant. |
| Court | New York Supreme Court — Appellate Division |
163 A.D.3d 1031
83 N.Y.S.3d 76
Patricia TOKAR, plaintiff,
v.
David J. WEISSBERG, etc., respondent;
Stanley Tokar, as administrator of the estate of Patricia Tokar, deceased, nonparty-appellant.
2016–07850
Index No. 24952/04
Supreme Court, Appellate Division, Second Department, New York.
Argued—April 9, 2018
July 25, 2018
Asher & Associates, P.C. (Annette G. Hasapidis, South Salem, NY, of counsel), for nonparty-appellant.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol of counsel), for respondent.
RUTH C. BALKIN, J.P., BETSY BARROS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for medical malpractice, etc., nonparty Stanley Tokar, as administrator of the estate of Patricia Tokar, deceased, appeals from a judgment of the Supreme Court, Suffolk County (William B. Rebolini, J.), entered June 22, 2016. The judgment dismissed the complaint. The appeal brings up for review an order of the same court dated March 28, 2016, which, upon reargument, adhered to a prior determination of the same court in an order dated October 5, 2015, denying the motion of nonparty Stanley Tokar, as administrator of the estate of Patricia Tokar, deceased, to be substituted as the party plaintiff in the action and to amend the caption accordingly, and granting the defendant's motion to dismiss the complaint pursuant to CPLR 1021 for failure to seek a timely substitution of parties on behalf of Patricia Tokar, deceased.
ORDERED that on the Court's own motion, the notice of appeal dated July 20, 2016, is deemed to be a notice of appeal by nonparty Stanley Tokar, as administrator of the estate of Patricia Tokar, deceased (see CPLR 2001 ; Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 775 N.Y.S.2d 753, 807 N.E.2d 864 ); and it is further,
ORDERED that the judgment is reversed, on the law, with costs, the orders dated October 5, 2015, and March 28, 2016, are vacated, the defendant's motion to dismiss the complaint pursuant to CPLR 1021 for failure to seek a timely substitution of parties on behalf of Patricia Tokar, deceased, is denied, the motion by nonparty Stanley Tokar, as...
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