Fitzpatrick v Palazzo

Fitzpatrick v Palazzo 2007 NY Slip Op 10285 [46 AD3d 1414] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Mark J. Fitzpatrick, as Successor Executor of Patricia A. Fitzpatrick, Deceased, Respondent, v Ronald G. Palazzo, M.D., et al., Appellants.

—[*1] Damon & Morey LLP, Buffalo (Amy Archer Flaherty of counsel), for defendants-appellants.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered March 15, 2007 in a medical malpractice action. The order, among other things, denied defendants' motion to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: This action was commenced by Patricia A. Fitzpatrick and her husband, Thomas M. Fitzpatrick, to recover damages for injuries sustained by Patricia arising from the alleged malpractice of defendants Ronald G. Palazzo, M.D. and Julie L. Mandaville, R.P.A. During the pendency of the action, both Patricia and her husband died. Contrary to the contention of defendants, Supreme Court neither abused nor improvidently exercised its discretion in denying their motion to dismiss the complaint based on the failure to substitute Mark J. Fitzpatrick as a party plaintiff in a timely manner, and in granting the cross motion for, inter alia, an order substituting Mark as successor executor of Patricia's estate (see CPLR 1015, 1021). The record establishes that defendants were not prejudiced by the delay in seeking the substitution, and there is a " 'strong public policy that matters should be disposed of on the merits' " (Johnson v Trivedi, 41 AD3d 1259, 1260 [2007]; see Egrini v Brookhaven Mem. Hosp., 133 AD2d 610 [1987]).

We further reject defendants' contention that the court erred in ordering the substitution nunc pro tunc. By actively participating in the litigation with full knowledge that the original plaintiffs had died and, indeed, in stipulating to the substitution of Mark, defendants waived their present contention that all matters in the litigation that occurred before the substitution were a nullity (see Abramowitz v American Gen. Contr. Co., 239 AD2d 303 [1997]; Durrant v Kelly, 186 AD2d 237 [1992], appeal dismissed 81 NY2d 758 [1992]). Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.