ABRAMOWITZ v. [And A Third-Party Action]. (1997)

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about May 26, 1995, which, insofar as appealed from, granted plaintiff's motion to confirm the Special Referee's report finding personal jurisdiction over defendant-appellant, granted the motion of plaintiff's administrator to be substituted for plaintiff, and denied defendant's motion to dismiss the complaint for failure to substitute plaintiff's administrator in timely manner, unanimously affirmed, with costs.

 We find that defendant participated in the traverse with full knowledge of plaintiff's death, and accordingly waived any claim that the traverse was a nullity because it took place without a proper substitution of the deceased plaintiff's representative (see, Nieves v. 331 E. 109th St. Corp., 112 A.D.2d 59, 60-61, 491 N.Y.S.2d 350).   Defendant's claim of prejudice as a result of the delay in substituting plaintiff's representative is improperly raised for the first time on appeal, and, in any event, without merit.   Concerning the traverse, we agree with the motion court that the findings of the Special Referee are substantially supported by the record, and should be confirmed.

MEMORANDUM DECISION.