RIVERA v. RIVER LOFT CONDOMINIUM (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Kings County (Kenneth P. Sherman, J.), dated February 1, 2024.  The order granted the defendant's motion pursuant to CPLR 1021 to dismiss the complaint for failure to timely substitute a representative for the plaintiff.

ORDERED that the appeal is dismissed, without costs or disbursements.

In 2015, the plaintiff (hereinafter the decedent) commenced this action against the defendant to recover damages for personal injuries.  The decedent died in 2017.  In June 2018, the defendant moved pursuant to CPLR 1021 to dismiss the complaint for failure to timely substitute a representative for the decedent.  In an order dated February 1, 2024, the Supreme Court granted the motion.  A notice of appeal was filed purportedly on behalf of the decedent on February 2, 2024.

“The death of a party terminates his or her attorney's authority to act on behalf of the deceased party” (Vicari v. Kleinwaks, 157 A.D.3d 975, 976, 70 N.Y.S.3d 532).  The decedent died after the commencement of this action, and no substitution was effected.  Nevertheless, counsel that had represented the decedent prior to his death purportedly took this appeal on the decedent's behalf.  Since counsel lacks the authority to act on the decedent's behalf, the appeal purportedly taken on the decedent's behalf must be dismissed (see Lee v. Leeds, Morelli & Brown, P.C., 233 A.D.3d 1072, 1076, 224 N.Y.S.3d 478;  Constable v. Staten Is. Univ. Hosp., 221 A.D.3d 952, 952, 198 N.Y.S.3d 604;  Hyman v. Booth Mem. Hosp., 306 A.D.2d 438, 761 N.Y.S.2d 306).

IANNACCI, J.P., MILLER, DOWLING and LOVE, JJ., concur.