FITZPATRICK v. PALAZZO LLP IPA LLC (2007)

 This action was commenced by Patricia A. Fitzpatrick and her husband, Thomas M. Fitzpatrick, to recover damages for injuries sustained by Patricia arising from the alleged malpractice of defendants Ronald G. Palazzo, M.D. and Julie L. Mandaville, R.P.A.   During the pendency of the action, both Patricia and her husband died.   Contrary to the contention of defendants, Supreme Court neither abused nor improvidently exercised its discretion in denying their motion to dismiss the complaint based on the failure to substitute Mark J. Fitzpatrick as a party plaintiff in a timely manner, and in granting the cross motion for, inter alia, an order substituting Mark as successor executor of Patricia's estate (see CPLR 1015, 1021).   The record establishes that defendants were not prejudiced by the delay in seeking the substitution, and there is a “ ‘strong public policy that matters should be disposed of on the merits' ” (Johnson v. Trivedi, 41 A.D.3d 1259, 1260, 836 N.Y.S.2d 474;  see Egrini v. Brookhaven Mem. Hosp., 133 A.D.2d 610, 519 N.Y.S.2d 716).

 We further reject defendants' contention that the court erred in ordering the substitution nunc pro tunc.   By actively participating in the litigation with full knowledge that the original plaintiffs had died and, indeed, in stipulating to the substitution of Mark, defendants waived their present contention that all matters in the litigation that occurred before the substitution were a nullity (see Abramowitz v. American Gen. Contr. Co., 239 A.D.2d 303, 658 N.Y.S.2d 24;  Durrant v. Kelly, 186 A.D.2d 237, 588 N.Y.S.2d 196, appeal dismissed 81 N.Y.2d 758, 594 N.Y.S.2d 717, 610 N.E.2d 390).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: