CUELLER v. BETANES FOOD CORP (2005)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about November 5, 2004, which denied plaintiff's motion to substitute the Administrator of the Estate of Prospero Cueller as plaintiff and to restore the action to the calendar, unanimously affirmed, without costs.

This action was commenced in 1996 for injuries allegedly sustained by plaintiff while shopping in defendant's store.   Plaintiff died on April 22, 1998 and the case was marked off the calendar on October 1, 1998.   A year later, it was dismissed pursuant to CPLR 3404.

 The court correctly found that the order of dismissal was a nullity because it was issued after plaintiff's death and before the substitution of a legal representative for him (Faraone v. Natl. Academy of Television Arts & Sciences, 296 A.D.2d 349, 745 N.Y.S.2d 163 [2002];  Wisdom v. Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d 682 [1985] ).   However, the present motion to substitute the administrator of plaintiff's estate as plaintiff and to restore the action to the calendar was properly denied in light of the six-year delay in obtaining letters of administration and the resulting prejudice to defendant (see Dorney v. Reddy, 45 A.D.2d 754, 357 N.Y.S.2d 21 [1974] ).