Summary
In Orellana, defendant appealed from an order denying his motion to dismiss the complaint for failure to substitute the deceased plaintiff's estate within a reasonable time.
Summary of this case from Cangemi v. RussomannoOpinion
January 13, 1986
Appeal from the Supreme Court, Kings County (Morton, J.).
Order affirmed, with costs.
It was not an abuse of discretion for Special Term to order substitution. Appellant's motion to dismiss was made within a year of the plaintiff's death and within six months of the appointment of an administratrix (see, Rosenfeld v Hotel Corp., 20 N.Y.2d 25, 29). Furthermore, in the absence of a showing of prejudice to appellant, or placement upon the Trial Calendar, dismissal for failure to substitute in an action which had been pending for only about a year at the time the motion to dismiss was made was not warranted (see, Almo Serv. v Weisskopf, 58 A.D.2d 550; cf. Meier v Schively, 10 A.D.2d 566; Ruderman v Feffer, 10 A.D.2d 704; Hemphill v Rock, 87 A.D.2d 836). Gibbons, J.P., Thompson, Brown and Eiber, JJ., concur.