Presiding Justice Michael L. Pesce
Lima appealed from a Civil Court order granting administrator Rosenblatt’s motion for leave to substitute herself as plaintiff in lieu of decedent Nicholas in a personal injury action, and to restore the action to the calendar. The divided panel concluded the civil court did not abuse its discretion in granting Rosenblatt’s motion as Lima failed to identify any evidence that became unavailable as a result of the delay, thus, failed to show prejudice. Thus, it affirmed the order. The dissent disagreed voting to reverse the order and deny Rosenblatt’s motion, and on the court’s own motion dismiss the complaint. It opined the civil court improvidently exercised its discretion in granting the motion in light of the more than 41-month delay in obtaining preliminary letters testamentary, an additional 7-month delay in seeking substitution, a failure to show a reasonable excuse for the delays, the absence of an affidavit of merit and potential prejudice to Lima. The dissent noted CPLR 1021 required a motion for substitution be made within a reasonable time after the event requiring substitution occurred, concluding the significant delay by Rosenblatt without an explanation for same warranted denial of her motion, and dismissal of the complaint.