NUNEZ v. GOODMAN (1999)

Supreme Court, Appellate Division, First Department, New York.

Georgina NUNEZ, etc., Plaintiff-Appellant, v. Elliott GOODMAN, et al., Defendants-Respondents.

Decided: September 28, 1999

ELLERIN, P.J., TOM, MAZZARELLI, WALLACH and LERNER, JJ.

Stanley P. Danzig, for Plaintiff-Appellant. Jonathan Rubin, for Defendant-Respondents.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about June 30, 1998, which denied defendants' motion to substitute as a defendant the deceased defendant's executrix, and denied plaintiffs' cross motion to restore the action to the calendar with leave to renew upon proper papers that include an affidavit of merit, unanimously reversed, on the law, without costs, the motion and cross motion granted, and the action restored.

The death of the defendant Elliott Goodman in April 1995 divested the IAS court of jurisdiction to dismiss the action one year later while substitution of a legal representative for the deceased defendant was pending. Therefore, the order of dismissal of the action is void (Harding v. Noble Taxi Corp., 155 A.D.2d 265, 547 N.Y.S.2d 29; Silvagnoli v. Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819, 492 N.Y.S.2d 619).

Inasmuch as the executrix now seeks substitution, her motion should be granted and the action restored to active status.

MEMORANDUM DECISION.

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