Fullerton Beck Secures Dismissal with Prejudice of Bronx County Negligence Action Following Delay in Estate Substitution

Fullerton Beck LLP successfully obtained dismissal with prejudice of a Bronx County negligence action after prevailing on a cross-motion to dismiss pursuant to CPLR § 1021.

The action arose from allegations that a home health agency and its employee negligently supervised a 91-year-old woman, resulting in a fall and serious injuries. Following the plaintiff’s death in 2020, the action remained stayed while no duly appointed estate representative was substituted to continue the litigation.

Special Litigation Counsel Laura Russell, together with Partner Alison O’Dwyer, opposed the plaintiff’s motion to substitute the decedent’s administrator and cross-moved to dismiss the action. The defense argued that the plaintiff failed to seek substitution within a reasonable time, emphasizing that the plaintiff initially attempted to proceed through a trust rather than a duly appointed estate representative, and waited nearly five years after the plaintiff’s death to commence Surrogate’s Court proceedings and obtain Letters of Administration.

The court agreed, finding that the plaintiff failed to demonstrate diligence in seeking substitution or to establish the potential merit of the action. The court denied the plaintiff’s motion, granted the defendants’ cross-motion under CPLR § 1021, and dismissed the action with prejudice.

This victory is especially sweet after a $900,000 verdict was previously vacated for the client.