The Court has indicated that the determination of reasonableness requires consideration of several factors which include the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has merit. Plainly, a defendant may seek dismissal of an action where plaintiff has failed to timely substitute an estate representative. What does this mean? Does plaintiff have a right to an indefinite claim? Should defendant move for an action based on the law of perpetuities? The answer rests in New York Civil Practice Law and Rules Section 1021, which states that “if 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 whom substitution should have been made.” CPLR § 1021 see McDonnell v. Essentially, the case is stayed, at a dead halt, pending proper substitution of an estate representative. The Court is therefore unable to hear what could well be a meritorious dispositive motion. Thus, the typical 90-day demand to resume prosecution and resulting motion is a nullity due to the Court’s lack of jurisdiction to act in the matter. Likewise, plaintiff’s counsel has no authority to act on behalf of the decedent plaintiff. When a plaintiff in a case is deceased, the Court has no jurisdiction over the matter. However, there is one type of delay that can seem to progress eternally slow, one where the named plaintiff has died.
Defense counsel deal with a myriad of issues in tort and premises liability cases which lead to undue delays.
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