FERGUSON v. DE LA TORRE (2024)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion to dismiss the plaintiff's complaint:

Papers NYSCEF Doc. No(s).

Order to Show Cause (Proposed), Affirmation in Support, Exhibits Thereto, Signed Order to Show Cause 30-38

In this motor vehicle negligence action, defendants, Bismarc De La Torre and Arya Transportation Inc. a/k/a Arga Transportation, Inc. (“Defendants”), move for an Order: (a) lifting the stay placed on this matter on February 21, 2023, following the death of the plaintiff, Laquan Ray (“Ray”); and, (b) pursuant to CPLR § 1021, dismissing the action with prejudice as and against all defendants for failing to timely substitute an estate administrator in the place and stead of the decedent-plaintiff. Defendants' unopposed ¹ motion is GRANTED, only to the extent of dismissing the action brought by Ray.

It is uncontested that plaintiff-decedent Ray died and that a stay was issued in this litigation on February 12, 2023. Since then, no relative or interested party has been appointed by the Surrogate to represent the decedent's interest. Hence, dismissal of his claims is warranted. Notwithstanding that there is a suggestion that the surviving plaintiff, Olivia Ferguson, was not cooperating with the prosecution of her claims, around the time of Ray's death, there is insufficient basis in the record to dismiss the action as against her as well.

Accordingly, it is hereby,

ORDERED that defendants' motion to lift the stay ordered by this Court on February 21, 2023, is GRANTED; it is further,

ORDERED that defendants' motion to dismiss is GRANTED, solely as to decedent-plaintiff, Laquan Ray, and the complaint, insofar as brought on his behalf is hereby DISMISSED; it is further,

ORDERED that all remaining parties shall appear for a discovery conference herein on July 23, 2024, at 9:30 am, and it is further,

ORDERED that defendants shall serve a copy of this Order with Notice of Entry on all parties within thirty (30) days of entry of this Order.

The foregoing constitutes the Decision and Order of the Court.

FOOTNOTES

1.   Although the parties appeared on May 13, 2024, two days before the original May 15, 2024, Order Show Cause return date on the motion, argument was heard and counsel for Oliva Ferguson did not request additional time to oppose the portion of the motion seeking to dismiss her claims as well. In any event, the question of the continued viability of Ferguson's claims is moot given the court's determination not to dismiss her claims at this time.

John A. Howard-Algarin, J.