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FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023
SUPREMEM COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------------------------------------------------------------------------x
NADINE BROOKS,
AFFIRMATION IN SUPPORT
Plaintiff, OF MOTION
- against - Index No. 305540/2012E
SHAWN DELMORE, CAPRI LANDSCAPING, INC., City File No. 2012-031424
AND THE CITY OF NEW YORK,
Defendant.
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RICHARD MONTALVO, an attorney admitted to practice in the State of New
York and an Assistant Corporation Counsel in the office of HON. SYLVIA O. HINDS-RADIX,
Corporation Counsel of the City of New York, the attorney of record for Defendant THE CITY
OF NEW YORK (hereinafter the “City”), affirms the truth of the following under the penalties of
perjury pursuant to CPLR 2106 upon information and belief based upon the records maintained in
this office:
1. This affirmation and the annexed exhibits are submitted in support of the
motion of Defendant, THE CITY OF NEW YORK, (1) for an order pursuant to CPLR §§ 1021
and 3211(a)(3); and (2) granting such other and further relief as this Court deems just and proper.
STATEMENT OF FACTS
2. This is an action to recover property damages from an incident that allegedly
occurred on March 29, 2011 on the sidewalk in front of the address 1371 Prospect Avenue, Bronx,
NY 10459. See Notice of Claim annexed hereto as Exhibit A.
PROCEDURAL HISTORY
3. On or about May 9, 2011, Plaintiff served a Notice of Claim on the City. See
Exhibit A.
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4. Plaintiff commenced this action by the purchase of an index number and the
filing of a summons and verified complaint with the Bronx County Clerk’s Office on June 26.
2012. The City joined issue on August 7, 2012 with service of its answer. See pleadings annexed
hereto as Exhibit B.
5. Defendant City submitted a motion to dismiss Plaintiff’s complaint dated
February 25, 2019 for failure to comply with outstanding discovery. During the pendency of that
motion, the City was made aware that Plaintiff NADINE BROOKS had passed away on June 29,
2018. See a copy of City’s February 25, 2019 Motion annexed hereto as Exhibit C and Plaintiff’s
Death Certificate as Exhibit D.
6. On May 5, 2021, this Honorable Court issued an Order stating “if proceedings
are not undertaken to have an administrator appointed within ninety (90) days of the date hereof,
then in such event, the court will entertain subsequent applications via notice of motion.” See a
copy of this Court’s Order annexed hereto as Exhibit E. It has been well beyond 90 days and no
proceedings have been undertaken to appoint an administrator. Thus, the City requests that
Plaintiff’s complaint and all cross-claims be dismissed with prejudice as to the City.
7. On December 8, 2022, this Honorable Court denied the City’s motion without
prejudice, holding the application for the above relief sought must be made by order to show cause.
See a copy of the Court’s order dated December 8, 2022 annexed hereto as Exhibit H. Thus, the
City is filing the present order to show cause, requesting that Plaintiff’s complaint and all cross-
claims be dismissed with prejudice as to the City.
ARGUMENT
POINT I
PLAINTIFF’S COMPLAINT SHOULD BE
DISMISSED AND ALL CROSS CLAIMS
AGAINST THE CITY OF NEW YORK FOR
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FAILURE TO MOVE TO SUBSTITUTE
UNDER CPLR § 1021.
8. Plaintiff has failed to comply with this Honorable Court’s Order to appoint an
administrator in an appropriate amount of time. Thus, Plaintiff’s complaint should be dismissed
in it entirety with prejudice.
9. When Plaintiff passed away, her attorneys were deprived of any authority that
they previously had to act on her behalf. Just as the death of a principal acts to revoke the authority
of the agent, so the death of a party to an action revokes the power of his attorney. Wisdom v.
Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d 682 (1st Dept. 1985). Accordingly, any action that counsel
took or may take on behalf of Plaintiff is rendered null and void inasmuch as they lack authority
to act. This would even include any opposition to the instant motion that Plaintiff’s counsel may
file. Sopcheck v. Long Island Jewish-Hillside Medical Center, 161 A.D.2d 577, 555 N.Y.S.2d
155 (2d Dept. 1990).
10. Here, plaintiff’s counsel was informed that plaintiff died on June 29, 2018. See
Exhibit D. On October 18, 2018 (111 days after Plaintiff’s death), Plaintiff’s attorney signed a
stipulation to produce Plaintiff for an IME after the City designated same despite the fact that
Plaintiff had already passed away and no administrator had yet to be appointed. See a copy of the
signed stipulation dated October 18, 2018 annexed hereto as Exhibit F
11. On May 5, 2021, this Honorable Court gave Plaintiff an additional 90 days to
appoint an administrator. The Court held “if proceedings are not undertaken to have an
administrator appointed within ninety (90) days of the date hereof, then in such event, the court
will entertain subsequent applications via notice of motion.” This Order was issued 418 days ago,
but Plaintiff’s Counsel has still not yet appointed an administrator. See Exhibit E. Plaintiff’s
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counsel has had ample opportunity for a proper substitution but failed to do so as it is 2022 and
Plaintiff’s Counsel has still failed to make a substitution of any estate representative.
12. CPLR 1021 provides: "if the event requiring substitution occurs before final
judgment and substitution is not made within a reasonable time, the action may be dismissed as to
the party whom substitution should have been made, however, such dismissal shall not be on the
merits unless the court shall so indicate." A defendant may seek dismissal of an action where
plaintiff has failed to timely substitute an estate representative. The determination of
reasonableness requires consideration of factors including the diligence of the party seeking
substitution, prejudice to the other parties, and whether the party to be substituted has shown that
the action or defense has merit.
13. CPLR 1021 vests the courts with jurisdiction to dismiss an action involving a
deceased party for the failure to substitute a personal representative within a reasonable time on
such notice as the Court, in its discretion, may direct, particularly when the persons interested in
the decedent's estate cannot show cause as to why the action should not be dismissed. See Rumola
v. Maimonides Med. Center, 37 A.D.3d 696, 830 N.Y.S.2d 569 (2d Dep't 2007).
14. Consequently, when plaintiff’s counsel or representative fails to offer a
reasonable excuse for a protracted delay in seeking the substitution, the defendants are prejudiced
and the action is appropriately dismissed for failure to substitute within a reasonable time. Id.
Here, there was no impediment that hindered plaintiff’s counsel, from seeking substitution for such
a long period of time.
15. Prejudice to the opposing party is another element considered by the courts in
their analysis of a CPLR 1021 motion for failure to substitute within a reasonable time. In the
circumstances herein, where over three years has elapsed since plaintiff’s death and no filing of a
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motion for substitution, prejudice to defendants is apparent, since memories of witnesses fade with
the substantial passage of time. This incident happened over 10 years ago and no depositions or
IME have been completed. Plaintiff’s counsel has waited almost a year and has not made any
tangible efforts to seek substitution to move forward in this lawsuit. Moreover, during the 3-year
period since Plaintiff’s death, Plaintiff’s counsel has made no attempts to effectuate substitution.
It is respectfully submitted that plaintiff’s counsel cannot defend the inactivity here for an
inordinate period of time and lack of due diligence, and the case should be dismissed for failure to
timely appoint an administrator.
16. There is no evidence to date that counsel has made any efforts to move for
substitution. The diligence of a party in seeking substitution is one of the factors to be considered
when considering a motion to dismiss pursuant to CPLR § 1021. See McDonnell v. Draizin, 24
A.D.3d 398, 808 N.Y.S.2d 628 (2d Dep't 2005). Thus, Plaintiff’s failure to timely substitute a
qualified estate representative should result in a dismissal of this action.
17. The Court of Appeals has ruled on this issue, holding that if a party dies before
a verdict or decision is rendered in an action, the action abates as to the decedent and must be
dismissed unless it is revived by substituting his personal representative.
18. Consequently, where, as here, a party fails to offer a reasonable excuse for a
protracted delay in seeking the substitution, the defendants are prejudiced and the action is
appropriately dismissed for failure to substitute.
WHEREFORE, it is respectfully requested that Defendant THE CITY OF NEW YORK’s
motion be granted in all respects, dismissing the complaint and all cross-claims as to Defendant
THE CITY OF NEW YORK, direct to enter judgment for the City, and granting such other and
further relief as this Court may deem just and proper
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RICHARD MONTALVO
Assistant Corporation Counsel
Tel: 718-503-5071
Email: rmontalv@law.nyc.gov
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NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023
CERTIFICATION UNDER UNIFORM CIVIL RULE 202.8-b
According to Microsoft Word 365, the portions of the affirmation that must be included in
a word count contain approximately [1,646] words, and comply with Uniform Civil Rule 202.8-b.
Dated: New York, NY
January 10, 2023
Respectfully submitted,
HON. SYLVIA O. HINDS-RADIX
Corporation Counsel
of the City of New York
Attorney for Defendant The City of New
York
Richard Montalvo
Assistant Corporation Counsel
Tel: (718) 503-5071
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Index No. 305540/2012E
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
NADINE BROOKS,
Plaintiff,
- against -
SHAWN DELMORE, CAPRI LANDSCAPING, INC.,
AND THE CITY OF NEW YORK ,
Defendant.
NOTICE OF MOTION AND SUPPORTING
AFFIRMATION
HON. SYLVIA O. HINDS-RADIX
Corporation Counsel of the City of New York
Attorney for Defendant
100 Church Street
New York, NY 10007
___________________________________
Richard Montalvo
Phone: (718)-503-5071
City File No. 2012-031424
Due and timely service is hereby admitted.
Bronx, N.Y. .......................................... , 2022 . . .
........................................................................ Esq.
Attorney for ...........................................................
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Preview
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 SUPREMEM COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------------------------------------x NADINE BROOKS, AFFIRMATION IN SUPPORT Plaintiff, OF MOTION - against - Index No. 305540/2012E SHAWN DELMORE, CAPRI LANDSCAPING, INC., City File No. 2012-031424 AND THE CITY OF NEW YORK, Defendant. ------------------------------------------------------------------------x RICHARD MONTALVO, an attorney admitted to practice in the State of New York and an Assistant Corporation Counsel in the office of HON. SYLVIA O. HINDS-RADIX, Corporation Counsel of the City of New York, the attorney of record for Defendant THE CITY OF NEW YORK (hereinafter the “City”), affirms the truth of the following under the penalties of perjury pursuant to CPLR 2106 upon information and belief based upon the records maintained in this office: 1. This affirmation and the annexed exhibits are submitted in support of the motion of Defendant, THE CITY OF NEW YORK, (1) for an order pursuant to CPLR §§ 1021 and 3211(a)(3); and (2) granting such other and further relief as this Court deems just and proper. STATEMENT OF FACTS 2. This is an action to recover property damages from an incident that allegedly occurred on March 29, 2011 on the sidewalk in front of the address 1371 Prospect Avenue, Bronx, NY 10459. See Notice of Claim annexed hereto as Exhibit A. PROCEDURAL HISTORY 3. On or about May 9, 2011, Plaintiff served a Notice of Claim on the City. See Exhibit A. 1 1 of 8 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 4. Plaintiff commenced this action by the purchase of an index number and the filing of a summons and verified complaint with the Bronx County Clerk’s Office on June 26. 2012. The City joined issue on August 7, 2012 with service of its answer. See pleadings annexed hereto as Exhibit B. 5. Defendant City submitted a motion to dismiss Plaintiff’s complaint dated February 25, 2019 for failure to comply with outstanding discovery. During the pendency of that motion, the City was made aware that Plaintiff NADINE BROOKS had passed away on June 29, 2018. See a copy of City’s February 25, 2019 Motion annexed hereto as Exhibit C and Plaintiff’s Death Certificate as Exhibit D. 6. On May 5, 2021, this Honorable Court issued an Order stating “if proceedings are not undertaken to have an administrator appointed within ninety (90) days of the date hereof, then in such event, the court will entertain subsequent applications via notice of motion.” See a copy of this Court’s Order annexed hereto as Exhibit E. It has been well beyond 90 days and no proceedings have been undertaken to appoint an administrator. Thus, the City requests that Plaintiff’s complaint and all cross-claims be dismissed with prejudice as to the City. 7. On December 8, 2022, this Honorable Court denied the City’s motion without prejudice, holding the application for the above relief sought must be made by order to show cause. See a copy of the Court’s order dated December 8, 2022 annexed hereto as Exhibit H. Thus, the City is filing the present order to show cause, requesting that Plaintiff’s complaint and all cross- claims be dismissed with prejudice as to the City. ARGUMENT POINT I PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED AND ALL CROSS CLAIMS AGAINST THE CITY OF NEW YORK FOR 2 2 of 8 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 FAILURE TO MOVE TO SUBSTITUTE UNDER CPLR § 1021. 8. Plaintiff has failed to comply with this Honorable Court’s Order to appoint an administrator in an appropriate amount of time. Thus, Plaintiff’s complaint should be dismissed in it entirety with prejudice. 9. When Plaintiff passed away, her attorneys were deprived of any authority that they previously had to act on her behalf. Just as the death of a principal acts to revoke the authority of the agent, so the death of a party to an action revokes the power of his attorney. Wisdom v. Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d 682 (1st Dept. 1985). Accordingly, any action that counsel took or may take on behalf of Plaintiff is rendered null and void inasmuch as they lack authority to act. This would even include any opposition to the instant motion that Plaintiff’s counsel may file. Sopcheck v. Long Island Jewish-Hillside Medical Center, 161 A.D.2d 577, 555 N.Y.S.2d 155 (2d Dept. 1990). 10. Here, plaintiff’s counsel was informed that plaintiff died on June 29, 2018. See Exhibit D. On October 18, 2018 (111 days after Plaintiff’s death), Plaintiff’s attorney signed a stipulation to produce Plaintiff for an IME after the City designated same despite the fact that Plaintiff had already passed away and no administrator had yet to be appointed. See a copy of the signed stipulation dated October 18, 2018 annexed hereto as Exhibit F 11. On May 5, 2021, this Honorable Court gave Plaintiff an additional 90 days to appoint an administrator. The Court held “if proceedings are not undertaken to have an administrator appointed within ninety (90) days of the date hereof, then in such event, the court will entertain subsequent applications via notice of motion.” This Order was issued 418 days ago, but Plaintiff’s Counsel has still not yet appointed an administrator. See Exhibit E. Plaintiff’s 3 3 of 8 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 counsel has had ample opportunity for a proper substitution but failed to do so as it is 2022 and Plaintiff’s Counsel has still failed to make a substitution of any estate representative. 12. CPLR 1021 provides: "if the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate." A defendant may seek dismissal of an action where plaintiff has failed to timely substitute an estate representative. The determination of reasonableness requires consideration of factors including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has merit. 13. CPLR 1021 vests the courts with jurisdiction to dismiss an action involving a deceased party for the failure to substitute a personal representative within a reasonable time on such notice as the Court, in its discretion, may direct, particularly when the persons interested in the decedent's estate cannot show cause as to why the action should not be dismissed. See Rumola v. Maimonides Med. Center, 37 A.D.3d 696, 830 N.Y.S.2d 569 (2d Dep't 2007). 14. Consequently, when plaintiff’s counsel or representative fails to offer a reasonable excuse for a protracted delay in seeking the substitution, the defendants are prejudiced and the action is appropriately dismissed for failure to substitute within a reasonable time. Id. Here, there was no impediment that hindered plaintiff’s counsel, from seeking substitution for such a long period of time. 15. Prejudice to the opposing party is another element considered by the courts in their analysis of a CPLR 1021 motion for failure to substitute within a reasonable time. In the circumstances herein, where over three years has elapsed since plaintiff’s death and no filing of a 4 4 of 8 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 motion for substitution, prejudice to defendants is apparent, since memories of witnesses fade with the substantial passage of time. This incident happened over 10 years ago and no depositions or IME have been completed. Plaintiff’s counsel has waited almost a year and has not made any tangible efforts to seek substitution to move forward in this lawsuit. Moreover, during the 3-year period since Plaintiff’s death, Plaintiff’s counsel has made no attempts to effectuate substitution. It is respectfully submitted that plaintiff’s counsel cannot defend the inactivity here for an inordinate period of time and lack of due diligence, and the case should be dismissed for failure to timely appoint an administrator. 16. There is no evidence to date that counsel has made any efforts to move for substitution. The diligence of a party in seeking substitution is one of the factors to be considered when considering a motion to dismiss pursuant to CPLR § 1021. See McDonnell v. Draizin, 24 A.D.3d 398, 808 N.Y.S.2d 628 (2d Dep't 2005). Thus, Plaintiff’s failure to timely substitute a qualified estate representative should result in a dismissal of this action. 17. The Court of Appeals has ruled on this issue, holding that if a party dies before a verdict or decision is rendered in an action, the action abates as to the decedent and must be dismissed unless it is revived by substituting his personal representative. 18. Consequently, where, as here, a party fails to offer a reasonable excuse for a protracted delay in seeking the substitution, the defendants are prejudiced and the action is appropriately dismissed for failure to substitute. WHEREFORE, it is respectfully requested that Defendant THE CITY OF NEW YORK’s motion be granted in all respects, dismissing the complaint and all cross-claims as to Defendant THE CITY OF NEW YORK, direct to enter judgment for the City, and granting such other and further relief as this Court may deem just and proper 5 5 of 8 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 RICHARD MONTALVO Assistant Corporation Counsel Tel: 718-503-5071 Email: rmontalv@law.nyc.gov 6 6 of 8 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 CERTIFICATION UNDER UNIFORM CIVIL RULE 202.8-b According to Microsoft Word 365, the portions of the affirmation that must be included in a word count contain approximately [1,646] words, and comply with Uniform Civil Rule 202.8-b. Dated: New York, NY January 10, 2023 Respectfully submitted, HON. SYLVIA O. HINDS-RADIX Corporation Counsel of the City of New York Attorney for Defendant The City of New York Richard Montalvo Assistant Corporation Counsel Tel: (718) 503-5071 7 7 of 8 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/10/2023 Index No. 305540/2012E SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX NADINE BROOKS, Plaintiff, - against - SHAWN DELMORE, CAPRI LANDSCAPING, INC., AND THE CITY OF NEW YORK , Defendant. NOTICE OF MOTION AND SUPPORTING AFFIRMATION HON. SYLVIA O. HINDS-RADIX Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street New York, NY 10007 ___________________________________ Richard Montalvo Phone: (718)-503-5071 City File No. 2012-031424 Due and timely service is hereby admitted. Bronx, N.Y. .......................................... , 2022 . . . ........................................................................ Esq. Attorney for ........................................................... 8 8 of 8