Get Out of Purgatory: How to End a Claim Where a Plaintiff has Died and No Estate Has Been Substituted to Continue the Lawsuit

By Alice A. Trueman, Esq.


Defense counsel deal with a myriad of issues in tort and premises liability cases which lead to undue delays. However, there is one type of delay that can seem to progress eternally slow, one where the named plaintiff has died.

When a plaintiff in a case is deceased, the Court has no jurisdiction over the matter. Likewise, plaintiff’s counsel has no authority to act on behalf of the decedent plaintiff. Thus, the typical 90-day demand to resume prosecution and resulting motion is a nullity due to the Court’s lack of jurisdiction to act in the matter. The Court is therefore unable to hear what could well be a meritorious dispositive motion. Essentially, the case is stayed, at a dead halt, pending proper substitution of an estate representative.

What does this mean? Does plaintiff have a right to an indefinite claim? Should defendant move for an action based on the law of perpetuities? The answer rests in New York Civil Practice Law and Rules Section 1021, which states that “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.” CPLR § 1021; see McDonnell v. Draizin, 24 A.d.3d 628, 628-629 (N.Y. App. Div. 2005); see also Rubino v. Krasinski, 54 A.D.3d 1016, 1017 (N.Y. App. Div. 2008). Plainly, a defendant may seek dismissal of an action where plaintiff has failed to timely substitute an estate representative. The Court has indicated that the determination of reasonableness requires consideration of several factors which include 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. See McDonnell v. Draizin, 24 A.d.3d 628, 628-629 (N.Y. App. Div. 2005); see also Bauer v. Mars Assoc., 35 A.D.3d 333, 334 (N.Y. App. Div. 2006).

While this little known provision of CPLR § 1021 may not allow a claim to be disposed of overnight, it does provide a solution to the never-moving, dead-end case, and permits the Court to grant a motion to dismiss for unreasonable delay in substitution so that a claim will not be open indefinitely. A dismissal is without prejudice, but shifts the burden to the family and/or estate to commence a new action to revive the dead claim.

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