SNIPES v. SCHMIDT (2018)

Appeal from order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about September 29, 2017, which granted defendants Kevin Schmidt and Ramakrishna Transportation, Inc.'s motion to dismiss the complaint on the ground of the unreasonable delay in substitution pursuant to CPLR 1021, unanimously dismissed, without costs, without prejudice to renewal on papers demonstrating the late plaintiff's counsel's authority to act.

The plaintiff in this personal injury action died after discovery was complete, leaving no surviving relatives and a will naming four beneficiaries.  Although a petition was filed in Surrogate's Court seeking the appointment of an executor and the issuance of letters testamentary, four years later, no appointment had been made.  Defendants moved by order to show cause, on notice to the four persons potentially interested in the estate, to dismiss the complaint on the ground of the delay in seeking substitution.  None of the interested persons appeared, and the motion was granted (see Thomas v. Benedictine Hosp., 8 A.D.3d 781, 779 N.Y.S.2d 587 [3rd Dept. 2004] ).

Although the decedent's former counsel appeared in opposition to the motion, his power to act on the decedent's behalf had terminated upon her death, and he did not state the basis of his or his law firm's authority to act in the matter (see Silvagnoli v. Consolidated Edison Empls. Mut. Aid Socy., 112 A.D.2d 819, 820, 492 N.Y.S.2d 619 [1st Dept. 1985] ).  Counsel indicated in his opposing papers that the firm had been retained in connection with the probate proceedings, but he did not state who had retained the firm and did not purport to appear on behalf of the estate or the interested persons.  Accordingly, he has no standing to appeal from the order that dismissed the complaint pursuant to CPLR 1021 (see Thomas v. Benedictine Hosp., 8 A.D.3d at 782, 779 N.Y.S.2d 587).