Gutierrez v. Steven Lincoln-Mercury, Inc.

In an action, inter alia, to recover damages for injury to property, nonparty Eileen Gutierrez appeals from an order of the Supreme Court, Kings County (Balter, J.), dated August 15, 2007, which denied her motion pursuant to CPLR 1015 (a) to substitute herself, in her capacity as administrator of the estate of Dios Gutierrez, in the place and stead of the deceased plaintiff, and to restore the action to the active calendar. Ordered that the order is affirmed, with costs. This action was marked “disposed of’ on November 2, 1990 when neither the plaintiff nor his attorney appeared in court for a scheduled status conference. The plaintiff died more than 14 years later without having restored the action to the active calendar, and his daughter Eileen Gutierrez was appointed administrator of his estate. In order to vacate the deceased plaintiffs 1990 default in appearing at the status conference, the administrator was required to demonstrate both a reasonable excuse for the default and the existence of a meritorious cause of action (see 22 NYCRR 202.27; Perez v New York City Hous. Auth., 47 AD3d 505 [2008]; Brooks v Haidt, 30 AD3d 365 [2006]). In view of the administrator’s failure to come forward with any reasonable explanation for the inordinate 17-year delay in seeking to restore this action to the active calendar, the Supreme Court providently exercised its discretion in denying her motion. Spolzino, J.P, Santucci, Miller, Dickerson and Eng, JJ., concur.