Sandra M. Ferrer, appellant, v. LEROUX (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Sandra M. Ferrer appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered July 17, 2025.  The order denied that plaintiff's motion to lift a stay of the action imposed due to the death of the plaintiff Mario Lopez–Martinez, to restore the action to the active calendar, and to amend the caption to delete the name of the decedent.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of the motion of the plaintiff Sandra M. Ferrer to lift a stay of the action imposed due to the death of the plaintiff Mario Lopez–Martinez, to restore the action to the active calendar, and to amend the caption to delete the name of the decedent.

The plaintiffs, Sandra M. Ferrer and her husband, Mario Lopez–Martinez, commenced this action in February 2017 to recover damages for personal injuries that they each allegedly sustained in a motor vehicle accident.  Lopez–Martinez (hereinafter the decedent) died on August 8, 2017, and the action was stayed due to his death.  In January 2025, Ferrer moved to lift the stay of the action, to restore the action to the active calendar, and to amend the caption to delete the name of the decedent.  In opposition to the motion, the defendants contended, inter alia, that Ferrer had failed to properly substitute the decedent's estate pursuant to CPLR 1021 and that the action had been dismissed in an order entered November 12, 2019 (hereinafter the 2019 order).  In reply, Ferrer contended, among other things, that the 2019 order had dismissed the action insofar as asserted by the decedent only.  In an order entered July 17, 2025, the Supreme Court denied Ferrer's motion on the ground that the action had been dismissed in its entirety by the 2019 order.  Ferrer appeals.

CPLR 1021 provides, in relevant part, “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made ” (emphasis added).  The statute does not authorize dismissal as to any other party (see Nwasike v Wagner, 218 AD3d 690, 691;  Petion v New York City Health & Hosps.  Corp., 175 AD3d 519, 519–520;  Vicari v Kleinwaks, 157 AD3d 975, 977–978).  In the 2019 order, the Supreme Court determined that there had been a failure to timely substitute a representative on behalf of the decedent and granted a motion by the defendants for dismissal with respect thereto.  While the defendants contend that the 2019 order dismissed the complaint insofar as asserted by Ferrer, as well as the decedent, the defendants failed to submit the underlying motion papers or to otherwise establish that the court had erroneously granted such relief (cf.  Nwasike v Wagner, 218 AD3d at 691;  Petion v New York City Health & Hosps.  Corp., 175 AD3d at 519–520;  Vicari v Kleinwaks, 157 AD3d at 977–978).

Thus, the Supreme Court should not have denied Ferrer's motion on the ground that the action had been dismissed in its entirety by the 2019 order.  Accordingly, we reverse the order entered July 17, 2025, and remit the matter to the Supreme Court, Queens County, for a determination on the merits of Ferrer's motion.

DILLON, J.P., BRATHWAITE NELSON, WAN and HOM, JJ., concur.