Kelly v. Fenton ( 2015 )

Kelly v Fenton (2015 NY Slip Op 09070)

Kelly v Fenton

2015 NY Slip Op 09070

Decided on December 9, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 9, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.

2015-01804
(Index No. 33833/08)

[*1]Susan Kelly, etc., appellant,

v

Kimberly Fenton, etc., et al., defendants, Frank Darras, etc., respondent.

Dankner, Milstein & Ruffo, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant.

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 20, 2014, as denied that branch of her motion which was to substitute herself, as administrator of the estate of James D. Kelly, for the deceased plaintiff, James D. Kelly, nunc pro tunc, as of the date of his death.

ORDERED that the order is reversed insofar as appealed from, on the law, the facts, and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was to substitute herself, as administrator of the estate of James D. Kelly, for the deceased plaintiff, James D. Kelly, nunc pro tunc, as of the date of his death, is granted.

The plaintiff moved to substitute herself, as administrator of the estate of James D. Kelly, for the deceased plaintiff, James D. Kelly, nunc pro tunc, as of the date of his death, and to amend the caption accordingly. In the order appealed from, the Supreme Court granted the motion only to the extent of making the substitution effective as of the date of the order, and amending the caption accordingly. Under the circumstances of this case, the Supreme Court should have granted the plaintiff's motion in its entirety (see Humphries v Consolidated Edison Co. of NY Inc., 106 AD3d 634; Nieves v 331 E. 109th St. Corp., 112 AD2d 59, 60-61; see also Kilmer v Moseman, 124 AD3d 1195, 1197-1198; McDonough v Bonnie Heights Realty Corp., 249 AD2d 520, 521).

MASTRO, J.P., DICKERSON, MILLER and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court