WOOD v. DOLLOFF (2008)

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

Richard B. WOOD and Linda M. Wood, Plaintiffs-Respondents, v. Lawrence DOLLOFF and Susan Dolloff, Defendants-Appellants.

Decided: June 06, 2008

PRESENT: MARTOCHE, J.P., CENTRA, LUNN, PERADOTTO, AND GREEN, JJ.

Eustace & Marquez, White Plains (Heath A. Bender of Counsel), for Defendants-Appellants. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this personal injury action in March 2004, and plaintiff Linda M. Wood died in June 2004. Upon her death, Supreme Court was divested “ ‘of jurisdiction to conduct proceedings in [the] action until a proper substitution [was] made pursuant to CPLR 1015(a)’ ” (Giroux v. Dunlop Tire Corp., 16 A.D.3d 1068, 1069, 791 N.Y.S.2d 769, quoting Noriega v. Presbyterian Hosp. in City of N.Y., 305 A.D.2d 220, 221, 761 N.Y.S.2d 18), and the record is devoid of any evidence that plaintiffs' attorney obtained, or indeed sought, the requisite substitution. Thus, we lack jurisdiction to review the order on appeal, inasmuch as the order is a nullity (see Singer v. Riskin, 32 A.D.3d 839, 821 N.Y.S.2d 120).

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

MEMORANDUM:

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