The claim before me in this motion seeks to recover against defendant State of New York for alleged medical malpractice in relation to treatment rendered to Sharon Washington at the SUNY Health Science Center in Brooklyn during her stay in this facility from February 24, 2016 through March 7, 2016 (Claim ¶¶ 3-4).

Discovery on this matter is complete, the Note of Issue was filed on March 25, 2019, and the case was then scheduled for trial. On October 7, 2019, claimant's counsel informed the Court that Ms. Washington had passed away on September 14, 2019. In accordance with CPLR 1015(a) and 1021, no further action has been taken in this matter pending the appointment of representatives of decedent's estate and an application to this Court for their substitution in this claim ^[FN1] (Affirmation of Maria K. Morano, Esq., dated September 25, 2023 ["Morano Aff"] at 3). [*2]Such an application has now been made, but defendant opposes it as untimely, and instead seeks dismissal of the claim. To address the parties' arguments, a brief chronology is necessary.

About a year following Washington's death, claimant's counsel informed the Court on August 31, 2020 that a petition had been filed in the Kings County Surrogate's Court to "have one of the decedent's children" appointed as a representative of the estate (Affirmation of Kathleen M. Gizzo, Esq., dated October 5, 2023 ["Gizzo Aff"], Ex I).^[FN2] By order of the Kings County Surrogate's Court dated November 17, 2022, Letters of Administration were issued and movants Shadasia Richardson and Jahvon Richardson were appointed as Co-Administrators of Sharon Washington's estate (Morano Aff at 4, Ex H). By motion filed September 25, 2023, pursuant to CPLR 1015, they now seek to be substituted as the claimants in this matter, as representing Ms. Washington's estate.

The motion papers reveal the following: On November 29, 2022, before making this motion and within a week of the issuance of the Letters, movants' counsel presented the Office of the Attorney General ("OAG") with a copy of the Letters and a proposed stipulation and order for the substitution of the deceased claimant with the movants (id. at 6, Ex O). The OAG declined to agree to such substitution (id.). At the same time, the Court made inquiries of the parties as to the status of the case. Two such inquiries—on January 11 and May 9, 2023—went unanswered, and then claimant's counsel failed to attend a conference to address the status on May 31, 2023 (see Gizzo Aff ¶¶ 9-10 & Exs M-O).

In its cross motion for dismissal of the claim, defendant opposes the motion citing to the Court of Claims Act § 15, which provides in relevant part as follows:

"In the event of the death of the claimant. . . and also in the event that by assignment or by operation of law, some person other than the claimant named in the claim has succeeded to the interest of one of the claimants named in such a claim, it shall be the duty of the personal representative of said claimant or of the person who succeeded claimant in interest to said claim or any interest therein within six months after he becomes invested with the title to said claim or any interest therein, to secure from the court of claims and serve upon the attorney-general an order substituting him as party to said claim instead of the party named in said claim, to whose right, title and interest he has succeeded, and in the event that he fails so to do, the court of claims on motion of the attorney-general, on such notice as the court may require, to all parties who have appeared in said action or proceeding or to the assignee or successor of the claimant may dismiss said claim"

(see Gizzo Aff ¶¶ 10-11). The State takes the position that since the motion for substitution was not filed until 10 months after the Letters were issued—after the expiration of the six-month period referenced in section 15—the motion should be denied and the claim dismissed due to what defendant characterizes as an "unreasonable" delay (id. ¶¶ 11-13). Although defendant acknowledges receiving the proposed stipulation for substitution just days after the November [*3]17, 2023 Letters were issued, it does not explain its refusal to sign it, except to say that "it is under no obligation or duty to stipulate to any substitution or agree to amend the caption of the action "( Reply Affirmation of Kathleen M. Gizzo, Esq., dated October 18, 2023 ["Reply Aff"] ¶ 2).

In opposition to the cross-motion, movants contend that the State unreasonably declined to stipulate to their substitution for the deceased claimant and failed to even return their counsel's multiple e-mails and phone messages. Thus, they argue that any delay past the six-month time frame referenced in section 15 is attributable to the State's unreasonable conduct (Affirmation in Opposition of Maria K. Morano, Esq., dated October 17, 2023 ["Opp Aff"] ¶¶ 5-15).

Pursuant to CPLR 1015(a) and 1021, "an order of substitution . . .is effected within the Discretion of the court" (Rosenfeld v Hotel Corp. of America, 20 NY2d 25, 28 [1967]). The mere passage of time alone does not necessarily warrant denial of the motion and dismissal of the claim (see id. at 29 [delay of 10 months, or even two years, in bringing substitution motion is not unreasonable as a matter of law]). In determining whether a substitution motion is made within a reasonable time frame, several factors should be considered, "including 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 the defense has merit" (Reed v Grossie, 59 AD3d 509, 511 [2d Dept 2009]). Moreover, in the absence of a showing of prejudice, a dismissal of the action has been found to be "an improvident exercise of judicial discretion" (Petty v Meadowbrook Distributing Corp., 266 AD2d 88, 88-89 [1st Dept 1999]).

As noted, the Court of Claims Act overlays on these principles a specific period of time—six months—after which the Court "may" dismiss the matter if an effort at substitution is not made. As the use of the word "may" makes clear, however, "the language of the statute is permissive and not mandatory"—that is, the Court has the discretion to dismiss the matter after the six-month period has elapsed, but is not required to do so (see Pehel v State, 208 Misc 742, 744 [Ct Cl, 1955]; see also Renna v State of New York, UID No. 2013-016-028 [Ct Cl, Marin, J., Aug 8, 2013] [declining to dismiss claim when substitution made after expiration of six-month period]; Frazier-Mott v State of New York, UID No. 2012-009-023 [Ct Cl, Miday, J., Dec 10, 2012] [noting discretionary nature of dismissal for delay of more than six months]).^[FN3]

In deciding how to exercise my discretion in this instance, I note that neither party has, to put it gingerly, acted in a manner likely to gain the Court's full sympathy. As noted, claimant's counsel did not respond to two inquiries about the status of its substitution, and then failed to appear at a conference on the matter. On the other hand, this issue could easily have been resolved by defendant's stipulation to what was essentially a ministerial matter, and apparently neither did so nor responded to movants' request. It is of course true, as defendant asserts, that it was not required to stipulate to anything. But it has given no good reason (or, indeed, no reason at all) why it would not do so. While it may be defendant's prerogative to fold its arms, shake its head and hold its breath when asked to agree to what appears to be a perfectly appropriate substitution, it cannot expect that the Court will leap at the chance to dismiss the matter due to the delay brought about (at least in part) by its own unexplained refusal to move the case along.

At the end of the day, defendant has made no showing that it suffered any prejudice by reason of the claimant's delay in this matter, and the delay following the six-month time frame set [*4]forth in the Court of Claims Act has been relatively modest. Add to that the "strong public policy favoring the resolution of cases on the merits" (Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413—414 [1st Dept 2011]), the fact that movants here did not sit on their hands after receiving their letters but promptly sought a stipulation, and the relatively modest nature of the delay following the expiration of the six-month period, even when weighed against some frustrating conduct by claimant's counsel, I see no reason to exercise my discretion in favor of dismissal here.

Accordingly, it is

ORDERED that the motion for substitution (M-99963) is granted, and it is further

ORDERED that the cross-motion (CM-100013) is denied it its entirety

1. Notice of Motion and Affirmation of Maria K. Morano, Esq., dated September 25, 2023, with Exhibits annexed thereto.

2. Notice of Cross-Motion and Affirmation in support of Cross-Motion and in Opposition to Motion of Kathleen M. Gizzo, Esq., dated October 5, 2023, with Exhibits annexed thereto.

3. Affirmation in Opposition of Maria K. Morano, Esq., dated October 17, 2023, with Exhibits annexed thereto.

4. Reply Affirmation of Kathleen M. Gizzo, Esq., dated October 18, 2023.