Opinion
No. 17479 Index No. 14425/02 No. 2022-00699
03-09-2023
Steven Strum, Plaintiff-Respondent, v. Michael R. Bressler, Defendant-Appellant.
Michael R. Bressler, appellant pro se. Penachio Malara LLP, White Plains (Anne Penachio of counsel), for respondent.
Michael R. Bressler, appellant pro se.
Penachio Malara LLP, White Plains (Anne Penachio of counsel), for respondent.
Before: Webber, J.P., Kern, Oing, Friedman, González, JJ.
Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered on or about April 7, 2021, denying defendant's motion for an order, pursuant to CPLR 1015(a) and 1021, vacating and setting aside an October 13, 2004 judgment against him on the grounds that the plaintiff had died more than 10 years prior, and no representative had moved to substitute for plaintiff, unanimously affirmed, without costs.
The court providently exercised its discretion in denying defendant's motion (see CPLR 1015[a]). While the approximately ten-year delay in seeking substitution is lengthy, the proffered excuse for the delay was entirely reasonable under the circumstances of this case (see generally Velez v New York Presbyt. Hosp., 145 A.D.3d 632, 633 [1st Dept 2016]; Wynter v Our Lady of Mercy Med. Ctr., 3 A.D.3d 376, 378 [1st Dept 2004]). In any event, plaintiff has already obtained a judgment against defendant, and the record establishes both lack of prejudice to defendant and a meritorious cause of action, particularly given defendant's prior unsuccessful attempts to have the judgment discharged in bankruptcy (see Noriega v Presbyterian Hosp.in City of N.Y., 305 A.D.2d 220, 221 [1st Dept 2003]; see also Navas v New York Hosp. Med. Ctr. of Queens, 180 A.D.3d 796, 797 [2d Dept 2020]).