The following papers numbered 1 to 4 read on this motion, noticed on April 30, 2019, and duly submitted on May 30, 2019. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1 ANSWERING AFFIDAVIT AND EXHIBITS 43498 REPLY AFFIDAVIT AND EXHIBITS 4 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS: By notice of motion dated April 9, 2019, plaintiff seeks “to restore this case and prosecute the case on its merits.”1The procedural history of this action reveals that this relief is being sought because on March 18, 2018, Justice Brigantti dismissed the entire complaint, and not just the first cause of action as plaintiff suggests in the reply papers, for failure to timely substitute. (CPLR §1021.) Plaintiff commenced this action in August 2015, alleging causes of action for, inter alia, medical malpractice and Public Health Law violations arising out of alleged nursing home negligence that occurred between January and September 2013. It should be noted that Geralde Duval died on September 30, 2013, some two years before this action ever commenced, and it was not until January 2018, some two plus years after the action commenced, that Geraldine Duval became Administratrix. Since formal letters of administration had not been issued authorizing Geraldine Duval to bring suit on behalf of Geralde Duval’s estate, this action should have been dismissed ab initio for lack of legal capacity. (CPLR 3211(a)(3); Goldberg v. Camp, 42 NY2d 1029 [1977].) The existence of a qualified administrator was a condition precedent to and an essential element for the maintenance of this action (Carrick v. Central, 51 NY2d 242 [1980]; Dawson v. Langer, 106 AD2d 152 [4th Dept 1985]). A similar issue was addressed by the First Department in a case entitled Bernardez v. City of New York. (100 AD2d 798 [1984].) In Bernardez, the plaintiff inaccurately described herself in the summons and complaint as the administratrix of the estate. Some five months after service of the summons and complaint, plaintiff finally received her “Letters of Administration,” and soon thereafter moved for leave to amend her pleadings accordingly. In response, defendants in Bernardez cross-moved for dismissal, alleging that the original complaint was defective in that plaintiff was not an appropriate person to commence the action. The First Department in Bernardez affirmed the Special Term’s denial of plaintiff’s motion and granting of defendants’ cross motion on a finding that the action was improperly commenced before the issuance of Letters of Administration. As in Bernardez, the instant action by plaintiff was improperly commenced in that Letters of Administration had not been issued. It should also be noted that Geralde Duval’s death divested plaintiff’s attorney of any authority to act until a proper party was substituted (Vapnersh v. Tabak, 131 AD3d 472 [2nd Dept 2015]), and not only did this court lack jurisdiction to entertain this action, any orders the court entered or proceedings the court held are considered null and void. (Giroux v. Dunlop, 16 AD3d 1068 [4th Dept 2005]; Hicks v. Jeffrey, 304 AD2d 618 [2nd Dept 2003].) However, the aforementioned jurisdictional issues were never raised by any of the parties in the instant motion (nor does it appear that they were raised at any time during the action’s pendency), and so this Court is constrained to only address the issues raised in the motion at hand. An action dismissed pursuant to CPLR §1021 is not on the merits unless the court specifies otherwise; therefore, res judicata alone would not bar a new action. (Blank v. Schafrann, 206 AD2d 771 [3rd Dept 1994].) If expiration of the statute of limitations prevents commencement of a new action, then a party may attempt to utilize the six-month extension period permitted by CPLR §205(a). This six-month extension is not available where the prior CPLR §1021 dismissal is considered a form of neglect to prosecute, which is exactly what happened to the second identical action plaintiff subsequently commenced on April 6, 2018. Keep in mind that in 2008, the legislature amended CPLR §205(a) to add language that limits when a dismissal for neglect to prosecute makes the six-month extension unavailable to plaintiffs. The new standard specifies that an order dismissing a case for neglect to prosecute must set forth on the record the conduct constituting the neglect, and that such conduct must demonstrate a general pattern of delay. The stricter scrutiny imposed by the legislature did not change the fact that, under certain circumstances, a dismissal for failure to timely substitute, pursuant to CPLR §1021, may fall within the neglect to prosecute exception to CPLR §205(a). (Weisman v. Fischbach, 111 AD3d 566 [1st Dept 2013]; Rumola v. Maimonides, 88 AD3d 781 [2nd Dept 2011].) This court ultimately found that plaintiff neglected to prosecute the instant action based on Justice Brigantti’s 2018 decision, in which she found that despite three so-ordered stipulations directing plaintiff to turn over Letters of Administration, plaintiff failed to do so. She went on to find that the affirmation by plaintiff’s counsel did not sufficiently explain the extended delay in providing Letters of Administration that occurred between August 2015 and Spring 2016, and then from November 2016 to May 2017. Justice Brigantti characterized plaintiff’s allegations of law office failure as vague, unsubstantiated, and not creditable as a reasonable excuse for delay.2 Finally, she noted in her decision that as of its writing, plaintiff’s counsel had not apprised the court as to whether the Letters of Administration were ever completed. Based on Justice Brigantti’s findings, this court found that plaintiff could not utilize CPLR §205(a), and dismissed the subsequently commenced action. According to plaintiff, “if a case is dismissed for failure to timely effect substitution pursuant to CPLR 1021 (sic), a plaintiff, in order to achieve reinstatement, must demonstrate a prima facie showing of merit, a reasonable excuse for the delay, and no undue prejudice to the defendants.” CPLR §1021 makes absolutely no reference to “reinstatement” as a remedy after dismissal. The pertinent segments of CPLR §1021 provide as follows: If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed…[and] [i]f the event requiring substitution occurs after final judgment, substitution may be made in either the court from or to which an appeal could be or is taken…[and] [w]hether or not it occurs before or after final judgment, if the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall…order the persons interested in the decedent’s estate to show cause why the action or appeal should not de dismissed. The language of CPLR §1021 makes it abundantly clear that the act of substitution only comes into play in those instances where a party dies during the pendency of a lawsuit. In as much as Geralde Duval was never a party to this action, since he died before commencement, CPLR §1021 was never a viable option for plaintiff to utilize. Despite this, and the absence of “reinstatement” as some form of remedy specifically provided for under CPLR §1021, it appears that plaintiff is relying on the First Department’s decision in Wynter v. Our Lady to request reinstatement. (3 AD3d 376 [2004].) In Wynter, the First Department reversed a lower court’s decision that granted defendant’s motion to dismiss for failure to timely substitute, and in doing so the First Department granted plaintiff’s cross-motion to substitute for a representative of the estate of deceased plaintiff. The plaintiff in Wynter appealed a lower trial court’s dismissal, and as part of its decision to reverse, the First Department reinstated (emphasis added) the action. Wynter did not involve some form of post CPLR §1021 dismissal motion made before a trial court to reinstate an action dismissed by said trial court. The First Department in Wynter did write, in what appears to be dictum, that “if a case is dismissed for failure to timely effect substitution pursuant to CPLR §1021, the plaintiff, in order to achieve reinstatement, must demonstrate a prima facie showing of merit, a reasonable excuse for the delay and no undue prejudice to the defendants.” And in support they cite their decision in Schwartz v. Montefiore Hospital, (305 AD2d 174 [2003]). However, Schwartz also did not involve some form of post CPLR §1021 dismissal motion to reinstate made returnable before the very trial court that dismissed the action. As in Wynter, the First Department in Schwartz reversed a lower trial court’s decision that granted defendant’s motion to dismiss for failure to timely substitute, and in doing so the First Department granted plaintiff’s cross-motion to substitute for a representative of the estate of deceased plaintiff. As already noted, there was no post dismissal motion to reinstate in Schwartz; instead, the plaintiff merely appealed a lower trial court’s dismissal, and as part of its decision to reverse, the First Department reinstated the action. This court is not convinced that reinstatement is in fact a viable option permitted by CPLR §1021, first because actions dismissed pursuant to CPLR §1021 are not on the merits, and therefore, res judicata alone would not bar commencement of a new action. (Blank, 206 AD2d 771.) Secondly, the ability to seek reinstatement would also call into question the need for the six-month extension period provided for under CPLR §205(a). The CPLR does permit reinstatement, or more appropriately “restoration,” of actions that are dismissed as abandoned cases (CPLR 3404), or actions dismissed pursuant to a default judgment or order (CPLR 5015). Under these circumstances, the movant seeking to vacate the dismissal, and restore the action to the calendar must show a meritorious cause of action, reasonable excuse for the delay and a lack of prejudice to the opposing party. (Gray v. B.R. Trucking, 59 NY2d 649 [1983]; Rodriguez v. Middle, 122 AD2d 720 [1st Dept 1986].) This is the same standard used in Wynter to review plaintiff’s late cross-motion to substitute pursuant to CPLR §1021. To the extent that this court were somehow convinced that plaintiff could seek reinstatement, then the aforementioned standard (i.e., meritorious action, reasonable excuse and lack of prejudice) would be the appropriate one to apply. But keep in mind that Justice Brigantti has already made a finding that plaintiff had no reasonable excuse for the delay in obtaining the Letters of Administration. She also found that plaintiff “failed to refute [defendants'] contention that they have been prejudiced by the delay because decedent’s medical records leading up to the alleged negligence will likely be unavailable as more than six years have passed since that time.” So for this court to grant reinstatement, it would have to find, in direct contradiction to Justice Brigantti’s findings (and essentially acting as an appellate court), that plaintiff had a reasonable excuse for the delay, and that there is no prejudice to defendants. It would be inappropriate for this court to make inconsistent findings on essentially the same issues addressed by a colleague. Under these circumstances, the relief requested should be more appropriately addressed to Justice Brigantti, either in the same form as a motion to reinstate, which she is free to find to be a viable option for plaintiff to pursue, and/or a possible motion to renew (CPLR 2221(e)). Therefore, based on the aforementioned, the instant motion is denied without prejudice to renew before Justice Brigantti. Defendants are directed to serve a copy of this decision with notice of entry by first class mail upon all parties within 30 days of receipt of same. This constitutes the decision and order of this court. Dated: August 26, 2019
