ESTATE OF EASON v. EASON (2022)

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In May 2019, prior to his death on September 8, 2019, John Eason commenced this proceeding, denominated a holdover proceeding, to evict occupant, his daughter, from his home, in which occupant had lived with him for nearly five years. In June 2019, the parties entered into a so-ordered stipulation which provided that occupant “waive[d] any counterclaims that could have been raised in this proceeding and consent[ed] to immediate issuance of a warrant of eviction” with a stay of execution and to issuance of a judgment of possession. In compliance with the stipulation, a final judgment awarding Mr. Eason possession was entered and a warrant of eviction was issued, and the warrant of eviction was stayed to September 30, 2019.

On September 26, 2019, occupant moved to, in effect, vacate the stipulation of settlement and the final judgment entered pursuant thereto, and to dismiss the proceeding. Shortly thereafter, Mr. Eason's other daughter, Jhane Eason, was issued preliminary letters testamentary, and she cross-moved for substitution of petitioner (see CPLR 1015 [a]). By order dated January 3, 2020, the District Court denied occupant's motion and granted the cross motion. As limited by her brief, occupant appeals from the denial of her motion.

“Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent pursuant to CPLR 1015 (a)” (NYCTL 2004-A Trust v Archer, 131 AD3d 1213, 1214 [2015]; see JPMorgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713, 714 [2011]; Neuman v Neumann, 85 AD3d 1138, 1139 [2011]). “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction” over the deceased party's personal representative, and such a motion “is not a mere technicality” (Bossert v Ford Motor Co., 140 AD2d 480, 480 [1988]; see Singer v Riskin, 32 AD3d 839, 840 [2006]).

Here, when occupant's motion was made (see CPLR 2211) on September 26, 2019, after Mr. Eason died, there had not been a substitution of the executor or administrator of his estate as petitioner in the instant proceeding. Upon Mr. Eason's death, the proceeding “was automatically stayed and no action could be taken by either party absent statutory authority” (Brown v Konczeski, 242 AD2d 847, 847 [1997]). As a proper substitution had not been made prior to the time occupant's motion was made, the court should not have determined the merits of occupant's motion (see U & Me Homes, LLC v County of Suffolk, 169 AD3d 853 [2019]; American Airlines Fed. Credit Union v Costello, 161 AD3d 819, 820 [2018]; NYCTL 2004-A Trust v Archer, 131 AD3d at 1214). The fact that Jhane Eason subsequently cross-moved for substitution of petitioner did not cure occupant's improper motion. Consequently, we affirm so much of the order of the District Court as denied occupant's motion, albeit on different grounds.

In light of the foregoing, we do not reach the merits of occupant's motion.

Accordingly, the order, insofar as appealed from, is affirmed.

DRISCOLL, J.P., EMERSON and VOUTSINAS, JJ., concur.