Strum v. Bressler , 2023 NY Slip Op 01245 ( 2023 )

Strum v Bressler (2023 NY Slip Op 01245)

Strum v Bressler

2023 NY Slip Op 01245

Decided on March 09, 2023

Appellate Division, First 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 and Entered: March 09, 2023
Before: Webber, J.P., Kern, Oing, Friedman, González, JJ.

Index No. 14425/02 Appeal No. 17479 Case No. 2022-00699

[*1]Steven Strum, Plaintiff-Respondent,

v

Michael R. Bressler, Defendant-Appellant.

Michael R. Bressler, appellant pro se.

Penachio Malara LLP, White Plains (Anne Penachio of counsel), for respondent.

Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered on or about April 7, 2021, denying defendant's motion for an order, pursuant to CPLR 1015(a) and 1021, vacating and setting aside an October 13, 2004 judgment against him on the grounds that the plaintiff had died more than 10 years prior, and no representative had moved to substitute for plaintiff, unanimously affirmed, without costs.

The court providently exercised its discretion in denying defendant's motion (see CPLR 1015[a]). While the approximately ten-year delay in seeking substitution is lengthy, the proffered excuse for the delay was entirely reasonable under the circumstances of this case (see generally Velez v New York Presbyt. Hosp., 145 AD3d 632, 633 [1st Dept 2016]; Wynter v Our Lady of Mercy Med. Ctr., 3 AD3d 376, 378 [1st Dept 2004]). In any event, plaintiff has already obtained a judgment against defendant, and the record establishes both lack of prejudice to defendant and a meritorious cause of action, particularly given defendant's prior unsuccessful attempts to have the judgment discharged in bankruptcy (see Noriega v Presbyterian Hosp.in City of N.Y., 305 AD2d 220, 221 [1st Dept 2003]; see also Navas v New York Hosp. Med. Ctr. of Queens, 180 AD3d 796, 797 [2d Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 9, 2023