

Foley v Foley (2017 NY Slip Op 05200)





Foley v Foley


2017 NY Slip Op 05200


Decided on June 28, 2017


Appellate Division, Second 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 on June 28, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
MARK C. DILLON
SHERI S. ROMAN
VALERIE BRATHWAITE NELSON, JJ.


2015-12645
 (Index No. 12817/11)

[*1]Teresa Foley, respondent, 
vMichael Foley, defendant; Benjamin Foley, nonparty-appellant.


Benjamin Foley, Hastings-on-Hudson, NY, nonparty-appellant pro se.
Lenihan & Associates, LLC, White Plains, NY (James Michael Lenihan of counsel), for respondent.

DECISION & ORDER
Appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated October 28, 2015. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were, in effect, pursuant to CPLR 1015(a) and 1021 to substitute Benjamin Foley as a defendant in this action and to amend the caption accordingly.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the contention of the appellant, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff's motion which were, in effect, pursuant to CPLR 1015(a) and 1021 to substitute the appellant, as a co-executor of the estate of his late father, Michael Foley (hereinafter the decedent), as a defendant in this divorce action. The plaintiff successfully demonstrated that her delay in seeking the substitution was not unreasonable, that she had satisfactory explanations for at least a portion of the delay, and that her claim against the decedent's estate was potentially meritorious. Moreover, the appellant was well aware of the plaintiff's claim against the estate throughout the proceedings, and there was a complete absence of any prejudice to the estate that would result from granting the motion. Under these circumstances, there is no basis upon which to disturb the court's determination (see Rosenfeld v Hotel Corp. of Am., 20 NY2d 25; Largo-Chicaiza v Westchester Scaffold Equip. Corp., 90 AD3d 716; Rubino v Krasinski, 54 AD3d 1016; Lewis v Kessler, 12 AD3d 421; Encalada v City of New York, 280 AD2d 578; Egrini v Brookhaven Mem. Hosp., 133 AD2d 610).
MASTRO, J.P., DILLON, ROMAN and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


