After a full briefing and oral argument, the Appellate Division, Second Department, unanimously affirmed the dismissal of the plaintiff’s complaint.  The daughter of a former resident brought the instant action against our client, a nursing and rehabilitation center, alleging that her mother developed a sacral skin ulcer at another facility and was released to the insured, where she received negligent care.

We moved successfully to dismiss the complaint for lack of capacity pursuant to CPLR §3211(a)(3) and for the plaintiff’s failure to timely appoint the daughter as an administrator pursuant to CPLR §1021. The plaintiff appealed the dismissal.

We opposed, arguing that the lower court correctly concluded the appellant failed to meet any of the criteria for opposing the motion.  She provided 1) no excuse for the delay in substituting herself as administrator; 2) no description of the diligent efforts performed in seeking substitution; 3) no affidavit of merit; and 4) no response to the facility’s claim of prejudice due to the passage of time.

We argued that despite COVID, plaintiff’s counsel made no efforts to file for Letters of Administration in 2021 or 2022.  In 2023 we jointly moved with the codefendant to dismiss the complaint; it was only a week after the motion to dismiss was served that the plaintiff’s counsel filed for Letters of Administration.  After the letter was granted, the plaintiff’s counsel moved for leave to amend the caption to substitute the daughter.  The court denied the motion to amend and granted our motions to dismiss.

The Second Department affirmed the dismissal, finding no evidence that the plaintiff acted diligently.  The Court found plaintiff’s counsel’s proffered explanations for the delay “unsubstantiated and insufficient to constitute a reasonable excuse.” Additionally, the Court agreed that the plaintiff failed sufficiently to demonstrate the potential merit of the action; it was unnecessary for the appellee to prove prejudice to obtain dismissal.