GUTHRIE v. NEW YORK PRESBYTERIAN BROOKLYN METHODIST HOSPITAL (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the appeal is from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated August 1, 2024.  The order granted the defendants' separate motions pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against each of them for failure to timely substitute a representative for the plaintiff ‘s decedent.

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

In October 2019, Eric Guthrie (hereinafter the plaintiff), as administrator of the estate of Eleanor Guthrie (hereinafter the decedent), and the plaintiff, in his individual capacity, commenced this action, inter alia, to recover damages for medical malpractice and wrongful death against the defendants.  On March 23, 2020, following the commencement of this action, the plaintiff passed away.  In February 2024, the defendants separately moved pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against each of them based upon the failure to timely substitute a new administrator of the decedent's estate.  In an order dated August 1, 2024, the Supreme Court granted the defendants' motions.  A notice of appeal was filed purportedly on behalf of the plaintiff on August 23, 2024.

“ ‘The death of a party terminates his or her attorney's authority to act on behalf of the deceased party’ ” (Rivera v. River Loft Condominium, 241 A.D.3d 713, 714, 238 N.Y.S.3d 301, quoting Vicari v. Kleinwaks, 157 A.D.3d 975, 976, 70 N.Y.S.3d 532).  Here, the plaintiff died after the commencement of this action, and no substitution was effected.  Nevertheless, counsel that had represented the plaintiff prior to his death purportedly took this appeal on his behalf.  Since counsel lacks the authority to act on the plaintiff's behalf, the appeal purportedly taken on the plaintiff's behalf must be dismissed (see id.;  Constable v. Staten Is. Univ. Hosp., 221 A.D.3d 952, 953, 198 N.Y.S.3d 604).

BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.