BUTLER v. RUSSO (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated August 27, 2019.  The order, in effect, directed dismissal of the complaint as a nullity.

ORDERED that the order is affirmed, without costs and disbursements.

In January 2014, the plaintiff allegedly was injured when the vehicle in which she was a passenger collided with a vehicle operated and owned by the defendant.  In October 2015, the plaintiff commenced this action against the defendant.  Thereafter, the plaintiff discovered that the defendant had died in September 2014, approximately 13 months prior to the filing of the summons and complaint.  In an order dated August 27, 2019, the Supreme Court, in effect, directed dismissal of this action as a nullity.  The plaintiff appeals.

It is well established that the dead cannot be sued, and thus, this action was a nullity from its inception (see Marte v. Graber, 58 A.D.3d 1, 3, 867 N.Y.S.2d 71;  Jordan v. City of New York, 23 A.D.3d 436, 437, 807 N.Y.S.2d 595).  “A party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent's estate” (Jordan v. City of New York, 23 A.D.3d at 437, 807 N.Y.S.2d 595;  see Hussain v. Chain, 217 A.D.3d 929, 930, 192 N.Y.S.3d 170).  In light of our determination, we need not reach the remaining contentions.

Accordingly, the Supreme Court properly, in effect, directed dismissal of this action.

LASALLE, P.J., MALTESE, VOUTSINAS and LOVE, JJ., concur.