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 prejudice, without costs, for lack of jurisdiction to entertain the appeal.

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.

Although the decedent's 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] ).  Accordingly, counsel 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 781, 782, 779 N.Y.S.2d 587 [3d Dept. 2004] ).

The dismissal of this appeal does not preclude a new motion at Supreme Court to substitute a representative for plaintiff upon Surrogate Court's appointment of a representative for the late plaintiff's estate (see Silvagnoli, 112 A.D.2d at 821, 492 N.Y.S.2d 619).  Such a representative would be permitted to move for vacatur of the dismissal, upon a showing of reasonable excuse for the delay, merit and no undue prejudice to defendants (see Thomas, 8 A.D.3d at 782, 779 N.Y.S.2d 587).

The Decision and Order of this Court entered herein on May 29, 2018 (161 A.D.3d 670, 78 N.Y.S.3d 309 [1st Dept. 2018] ) is hereby recalled and vacated (see M–3196 & M–3559, 2018 WL 6057051 decided simultaneously herewith).