IN RE: GOVERNMENT EMPLOYEES INSURANCE COMPANY (1997)

In a proceeding pursuant to CPLR 7503 to permanently stay arbitration of a claim for uninsured motorist benefits, the appeal is from an order of the Supreme Court, Nassau County (DiNoto, J.), dated January 24, 1997, which granted the petition.

ORDERED that the appeal is dismissed, with costs, and the order is declared to be a nullity.

 An action cannot be maintained against a party who is not a natural or artificial person having legal capacity to be sued (see, MacAffer v. Boston & Maine R.R., 242 App.Div. 140, 144-145, 273 N.Y.S. 679, affd. 268 N.Y. 400, 197 N.E. 328;  59 Am.Jur.2d, Parties § 42;  67A C.J.S. Parties § 41).   A proceeding to permanently stay arbitration cannot be brought against the estate of a decedent before the appointment of a legal representative (see, MacAffer v. Boston & Maine R.R., supra).   In this case, the decedent died prior to the commencement of this proceeding and a personal representative has not been appointed to represent the estate.   Therefore, the order appealed from is a nullity and this court has no jurisdiction to entertain the appeal (see, Cooper v. Volk, 157 A.D.2d 766, 551 N.Y.S.2d 771;  Bossert v. Ford Motor Co., 140 A.D.2d 480, 528 N.Y.S.2d 592).

MEMORANDUM BY THE COURT.