Opinion
12-09-2015
Susan KELLY, etc., appellant, v. Kimberly FENTON, etc., et al., defendants, Frank Darras, etc., respondent.
Dankner, Milstein & Ruffo, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant.
Dankner, Milstein & Ruffo, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 20, 2014, as denied that branch of her motion which was to substitute herself, as administrator of the estate of James D. Kelly, for the deceased plaintiff, James D. Kelly, nunc pro tunc, as of the date of his death.
ORDERED that the order is reversed insofar as appealed from, on the law, the facts, and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was to substitute herself, as administrator of the estate of James D. Kelly, for the deceased plaintiff, James D. Kelly, nunc pro tunc, as of the date of his death, is granted.
The plaintiff moved to substitute herself, as administrator of the estate of James D. Kelly, for the deceased plaintiff, James D. Kelly, nunc pro tunc, as of the date of his death, and to amend the caption accordingly. In the order appealed from, the Supreme Court granted the motion only to the extent of making the substitution effective as of the date of the order, and amending the caption accordingly. Under the circumstances of this case, the Supreme Court should have granted the plaintiff's motion in its entirety (see Humphries v. Consolidated Edison Co. of N.Y. Inc., 106 A.D.3d 634, 965 N.Y.S.2d 717 ; Nieves v. 331 E. 109th St. Corp., 112 A.D.2d 59, 60–61, 491 N.Y.S.2d 350 ; see also Kilmer v. Moseman, 124 A.D.3d 1195, 1197–1198, 3 N.Y.S.3d 147 ; McDonough v. Bonnie Heights Realty Corp., 249 A.D.2d 520, 521, 672 N.Y.S.2d 378 ).