Horvath v. Hong Lin Yap , 736 N.Y.S.2d 877 ( 2002 )

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered November 21, 2000, which, in an action for personal injuries arising out of a car accident, insofar as appealed from, directed defendants’ attorney to obtain the appointment of an administrator for the estate of the deceased defendant and to effect the substitution of such administrator for the deceased defendant within 90 days, unanimously affirmed, with costs.

It appears that after some disclosure plaintiffs were granted summary judgment against both defendants on the issue of liability, and that about a month before the inquest plaintiffs’ attorney was advised by defendants’ insurance carrier that one of the defendants had died. It appears that the surviving defendant has the same last name as the decedent, lives at the same address as did the decedent, is of an age consistent with an inference that he is the decedent’s son, and might very well have an interest in the decedent’s estate. Given these circumstances, it was a proper exercise of discretion under CPLR 1021 to assign defense counsel, who continues to represent the surviving defendant, the responsibility of effectuating the substitution necessary for the action to proceed against the decedent’s estate. Concur — Williams, J.P., Saxe, Ellerin, Lerner and Friedman, JJ.