SCHRAVEN v. TOWN OF TONAWANDA (1997)

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

Katherine SCHRAVEN, Appellant, v. TOWN OF TONAWANDA, Respondent.

Decided: April 25, 1997

Before GREEN, J.P., and PINE, LAWTON, DOERR and FALLON, JJ.

Matusick, Spadafora & Verrastro by Joseph Bergen, Buffalo, for Appellant. Brown & Kelly, LLP by Carlton Bronnell, Buffalo, for Respondent.

Following the commencement of this personal injury action, plaintiff died. No substitution of a legal representative was made pursuant to CPLR 1015(a) before defendant moved for summary judgment. As a result, Supreme Court lacked jurisdiction to rule on the motion and the order granting it is a nullity (see, Weber v. Bellinger, 124 A.D.2d 1009, 508 N.Y.S.2d 779; Silvagnoli v. Consolidated Edison Empls. Mut. Aid Socy., 112 A.D.2d 819, 820, 492 N.Y.S.2d 619). In addition, this Court has no jurisdiction to entertain the instant appeal (see, Catalfamo v. Flushing Natl. Bank, 124 A.D.2d 624, 625, 507 N.Y.S.2d 885; Muth v. Benjamin, 109 A.D.2d 736, 486 N.Y.S.2d 54).

Order unanimously vacated and appeal dismissed without costs.

MEMORANDUM:

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