Supreme Court, Richmond County

Decided on April 22, 2026

Index No. 151152/2021

Ronald Castorina, Jr., J.

[*1]

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 002) numbered 32-39, 48-49; and (Motion No. 003) numbered 40-47, 50-51 were read on these motions. The following papers were considered in connection with defendants' motion by Order to Show Cause seeking dismissal pursuant to CPLR §1021, and plaintiff's cross-motion seeking substitution and related relief: the Order to Show Cause and supporting affirmation of Scott G. Christesen, Esq., dated March 27, 2026, together with exhibits annexed thereto; the affirmation in opposition and in support of cross-motion of Brett R. Leitner, Esq., dated April 19, 2026, together with exhibits annexed thereto; and all pleadings and proceedings heretofore had herein. Reply on Motion Sequence No. 003 was waived on the record. Oral argument was completed on April 21, 2026.

II. Findings of Fact

This action, sounding in medical malpractice, negligence, and statutory violations, arises from allegations of improper care and treatment rendered to Charles S. Cascione during his residency at defendants' facility between December 18, 2018 and January 17, 2019. (NY St Cts Filing [NYSCEF] Doc No. 34 at ¶1-2). The action was commenced by the filing of a summons and verified complaint on June 15, 2021 (NY St Cts Filing [NYSCEF] Doc No. 1), and issue was joined by defendants on November 16, 2021. (NY St Cts Filing [NYSCEF] Doc No. 10).

Following joinder, the matter proceeded into discovery, including the entry of a Preliminary Conference Order (NY St Cts Filing [NYSCEF] Doc No. 26) and the service of discovery demands (NY St Cts Filing [NYSCEF] Doc No. 11; 13; 14). It is further reflected that the original plaintiff, Mary Ann Cascione, in her capacity as Administratrix of the Estate of Charles S. Cascione, actively participated in the prosecution of this action, including appearing for deposition. (NY St Cts Filing [NYSCEF] Doc No. 35). Charles S. Cascione is alleged to have died on June 18, 2019. (NY St Cts Filing [NYSCEF] Doc No. 2). His spouse, Mary Ann Cascione, was thereafter appointed as Administratrix and substituted as plaintiff. (see id).

On January 26, 2024, Mary Ann Cascione died. (NY St Cts Filing [NYSCEF] Doc No. 31). Her death operated as a stay of the action by operation of law, thereby necessitating substitution of a proper representative in order for the action to proceed. The record demonstrates that more than two years have elapsed since the death of Mary Ann Cascione. During that period, no substitution has been effected. Defendants have affirmatively represented, based upon a review of the Surrogate's Court records, that no estate proceeding has been commenced on behalf of the Estate of Mary Ann Cascione. (NY St Cts Filing [NYSCEF] Doc No. 50).

In opposition, plaintiff does not dispute the absence of substitution but instead advances generalized assertions that efforts have been undertaken to identify heirs, consult with counsel, and potentially pursue estate relief in the future. (NY St Cts Filing [NYSCEF] Doc No. 48). Plaintiff further seeks, by cross-motion, the appointment of David Villarreal as a temporary administrator and his substitution as plaintiff. (NY St Cts Filing [NYSCEF] Doc No. 49).

Notably absent from plaintiff's submissions, however, is any competent proof that a petition for letters testamentary, letters of administration, or letters of administration de bonis non (SCPA §1007), has been filed in the Surrogate's Court, or that any such application is presently pending. [*2]The record is devoid of any filing, citation, or proceeding that would indicate that the process of securing a fiduciary has been formally initiated.

Accordingly, the Court is presented with a record reflecting a period exceeding two years of inaction with respect to substitution, unaccompanied by proof of any formal effort to invoke the jurisdiction of the Surrogate's Court to obtain a successor fiduciary.

III. Conclusions of Law

CPLR § 1021 provides, in pertinent part, that "[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made," and further provides that such dismissal may, in the court's discretion, be on the merits.

It is axiomatic that the death of a party divests the court of jurisdiction to act further in the action until a proper substitution has been made (see Hyman v Booth Mem. Hosp., 306 AD2d 438 [2d Dept 2003]). CPLR § 1021 provides the procedural mechanism by which that jurisdiction may be restored, while simultaneously affording the court discretion to dismiss the action where substitution is not timely effectuated.

The central inquiry under CPLR § 1021 is whether substitution has been made within a "reasonable time," a determination that rests within the sound discretion of the Court. In exercising that discretion, courts have consistently examined the length of the delay, the diligence of the party seeking substitution, and the presence or absence of a reasonable excuse.

The Appellate Division has repeatedly held that delays approximating or exceeding two years in seeking substitution, where not supported by a demonstration of diligence, are unreasonable and warrant dismissal. In Morton v North Shore Univ. Hosp. (244 AD3d 722 [2d Dept 2025]), the Court affirmed dismissal where the plaintiff failed to act diligently in seeking substitution following the death of a party, emphasizing that the record did not support a finding of reasonable efforts. Similarly, in Sopcheck v Long Is. Jewish Hillside Med. Ctr. (161 AD2d 577 [2d Dept 1990]), the Second Department affirmed dismissal where nearly two years had elapsed between the death of the party and the appointment of a representative.

Moreover, in Parillo v Blatt (160 AD2d 853 [2d Dept 1990]), the Court held that a two-year delay in seeking substitution supported a finding that the action had been abandoned. Likewise, in Giroux v Dunlap Tire Corp. (16 AD3d 1068 [4th Dept 2005]), the Appellate Division recognized that failure to seek substitution within a reasonable time constitutes a sufficient predicate for dismissal pursuant to CPLR § 1021.

The First Department has similarly cautioned that the time to effect substitution is not without limit and "should not be extended indefinitely" (Silvagnoli v Consolidated Edison Employees Mut. Aid Socy., 112 AD2d 819 [1st Dept 1985]; see also Lilam v Gibson & Cushman of NY, Inc., 81 AD2d 555 [1st Dept 1981]).

Applying these settled principles, the Court finds that the delay in this matter, exceeding two years, is prima facie unreasonable. The burden thus shifts to plaintiff to demonstrate that such delay is excusable and that diligent efforts were undertaken to effect substitution. Plaintiff has failed to meet that burden.

The submissions in opposition are notably devoid of any evidence that a petition has been filed in the Surrogate's Court. The absence of even the initial step necessary to secure a fiduciary, namely, the commencement of a proceeding for letters, cannot be reconciled with a claim of [*3]diligence. Generalized assertions of consultation, investigation, or intent do not constitute the type of concrete, documented effort required to defeat a motion pursuant to CPLR § 1021.

This Court is particularly troubled by the complete failure, over a period exceeding two years, to invoke the jurisdiction of the Surrogate's Court. The administration of estates, including the appointment of fiduciaries and issuance of letters, lies exclusively within the province of that court. It is not the function of this Court to act as a surrogate tribunal, nor to craft interim remedies to compensate for a party's failure to pursue relief in the appropriate forum.

To hold otherwise would effectively permit litigants to bypass the orderly procedures governing estate administration and would place upon this Court the untenable burden of supervising matters beyond its jurisdiction.

Plaintiff's cross-motion, which seeks the appointment of a temporary administrator by this Court, underscores this concern. While courts of general jurisdiction possess broad equitable powers, those powers do not supplant the statutory framework governing the appointment of fiduciaries. In the absence of a pending or even initiated Surrogate's Court proceeding, the relief sought would require this Court to assume a role that it declines to undertake.

Further, the Court finds that the delay has not been satisfactorily explained. The circumstances advanced, namely, the existence of potential heirs and the asserted complexity of the estate, do not excuse the complete failure to file a petition for letters over an extended period. The law does not require perfection, but it does require diligence. Here, the record reflects neither. Accordingly, the Court concludes that substitution has not been made within a reasonable time, that plaintiff has failed to demonstrate due diligence, and that the delay is both substantial and unjustified.

In light of the foregoing, dismissal pursuant to CPLR § 1021 is warranted. Given the prolonged inaction, the absence of any formal effort to obtain a fiduciary, and the indicia of abandonment reflected in the record, the Court further determines, in the exercise of its discretion, that such dismissal shall be on the merits.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby

ORDERED that defendants' motion pursuant to CPLR § 1021 is GRANTED; and it is further

ORDERED that the complaint is DISMISSED WITH PREJUDICE, on the merits, for failure to timely substitute a proper party plaintiff; and it is further

ORDERED that plaintiff's cross-motion is DENIED in its entirety; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

Dated: April 22, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT