Heimer v. Johnson, Drake & Piper, Inc. , 26 A.D.2d 547 ( 1966 )

In a negligence action to recover damages for injury to property, defendants appeal from an order of the Supreme Court, Queens County, entered March 16, 1966, which (1) granted a motion to amend the complaint so as to substitute as a plaintiff the executor of the decedent’s estate of Jennie Heimer, in place of the latter, and (2) denied defendants’ cross motion to dismiss the complaint pursuant to statute (CPLR 3211, subd. [a], pars. 3, 5). Order affirmed, without costs. The summons and complaint were served four months after the death of plaintiff Jennie Heimer and three months after the appointment of the executor. In our opinion, the substitution of the executor for the deceased plaintiff was properly permitted as the correction of an irregularity under CPLR 2001 (Rosenberg v. Caban, 16 N Y 2d 905). Defendants’ defenses with regard to the interest of .coplaintiff John Coppola and the alleged absence of necessary parties have not been waived under CPLR 3211 (subd. [e]). However, under the circumstances, defendants should be left to their remedies in the trial court. Beldock, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.