In Dugger v. Conrad, the New York Supreme Court, Appellate Division, First Department reversed a decision dismissing a complaint for failure to substitute a party after death, on the law and as a matter of discretion in the interest of justice.
The Facts Of the Case
Patricia Sage and Barbara Conrad, both now deceased, were formerly tenants-in-common of a condominium apartment located in Manhattan. Plaintiff is the preliminary executor of Sage’s estate, and brought an action to quiet title against Conrad. Conrad passed away during the proceedings, which automatically stayed the action. No party was substituted for Conrad. The remaining defendants, various banks and mortgage holders, filed a motion to dismiss the complaint for plaintiff’s failure to substitute a party. The court granted the dismissal, and plaintiff appealed.
What Happens When a Party Dies In the Middle Of Litigation?
Under NY CPLR § 1015, if a party dies and the claim for or against him is not extinguished under New York law as a result of the death, the court shall order substitution of the proper party or parties.
“It is well settled that the death of a party divests the court of jurisdiction to render a judgment until a proper substitution has been made, so that any step taken without it may be deemed void, including an appellate decision” (Nieves v 331 E. 109th St. Corp., 112 AD2d 59, 60 [1st Dept 1985]).
If the right sought to be enforced survives only to the surviving plaintiffs or against the surviving defendants, the action does not abate. Instead, the death is noted on the record and the action proceeds.
What Is The Procedure To Substitute After a Party Death In New York?
Substitution of a party does not happen automatically upon the death of a party under New York law. Instead, a motion for substitution is made by the successors or representatives of a party or by any party.
If the death of the party 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. However, such dismissal shall not be on the merits, unless the court indicates such.
If the death of the party occurs after final judgment, substitution of the party may be made in either the court from or to which an appeal could be or is taken, or the court of original instance. If substitution is not made within four months after the event requiring substitution, the court to which the appeal is or could be taken may dismiss the appeal, impose conditions, or prevent it from being taken.
Whether or not it occurs before or after final judgment, if the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent’s estate to show cause why the action or appeal should not be dismissed.
NY CPLR § 1021 sets forth the procedure to substitute parties into an action.
New York Public Policy Of Disposing Of Cases On the Merits
In New York, like most states, there is a strong public policy favoring the disposition of cases on the merits (Peters v City of N.Y. Health & Hosps. Corp., 48 AD3d 329 [1st Dept 2008]).
In this case, there was a delay of about 16 months between the date Conrad died and the date the defendants moved to dismiss. During that time, the plaintiff contends that she tried to locate Conrad’s family, without success. The Court stated:
Notably, Conrad was not plaintiff’s counsel’s former client and it has been difficult to locate any potential representatives. Nor have the defendant banks moved to substitute a representative for Conrad in their foreclosure action against her, although they now allege in that action to have possibly located one of Conrad’s distributees.
While plaintiff had not specifically sought to have the public administrator appointed for Conrad’s estate, during oral argument on the motion to dismiss, plaintiff’s counsel did request an extension of 30 days to allow her time to file such a petition or motion in Surrogate’s Court. In light of the relatively short passage of time between Conrad’s death and the time defendants’ motion was made, the allegation in plaintiff’s complaint that the reverse mortgage upon which this case is premised was obtained fraudulently and is null and void, and the fact that the defendant banks had not even moved for substitution in the related foreclosure action, it was an abuse of discretion for the motion court not to allow plaintiff, at a minimum, the additional 30 days requested to seek to have the public administrator appointed so that the case could move forward and be decided on the merits.
Litigation often does not go as planned, and the death of the party in the middle of a case is rarely anticipated. If the action is not over as a result of the death of a party, acting as soon as possible by moving to substitute a party into the action in place of the decedent is the most prudent course of action.