ANTONIELLO v. FAUSTINA CORPORATION (2024)

Appeals from orders, Supreme Court, New York County (Andrea Masley, J.), entered October 24, 2023, which granted plaintiffs' motion to restore the case to the active calendar, and entered May 9, 2024, which granted a motion by Vincent Santelmo and Janice Simeon–Ruddy to intervene as plaintiffs and denied defendants' cross-motion to declare the October 24, 2023 order null and void, unanimously dismissed, without costs.

Plaintiff John Simeon's death almost one year before plaintiffs moved to restore this case to the calendar divested the court of jurisdiction over the proceedings until the substitution of a proper representative (see CPLR 1015[a];  Schnapp v. Miller's Launch, Inc., 135 A.D.3d 655, 656, 24 N.Y.S.3d 606 [1st Dept. 2016]).  Contrary to plaintiffs' contention, Simeon's claims did not extinguish upon his death under the plain language of Faustina Corporation's by-laws.  Plaintiffs also do not explain how Simeon's rights “survive[ ] only to the surviving plaintiffs” as required under CPLR 1015(b), as plaintiffs simultaneously argue that Simeon's rights passed to his children, who were not plaintiffs at the time of the motion to restore.

Since both orders were “issued after [Simeon's] death and without proper substitution,” and because no substitution has been made to date, “the appeal[s] must be dismissed as we do not have jurisdiction to hear and determine” them (Thomas v. Rubin, 197 A.D.3d 1061, 1061, 151 N.Y.S.3d 866 [1st Dept. 2021]).  “Since we do not address the merits of the underlying appeal[s], this dismissal is without prejudice” (Schnapp, 135 A.D.3d at 656, 24 N.Y.S.3d 606).