356 358 SJP LLC v. STEWART (2020)

Supreme Court, Appellate Term, New York.

356-358 SJP, LLC, Respondent, v. Dorothy STEWART, Tenant. Nicholas Stewart, Appellant.

2018-2176 K C

Decided: August 28, 2020

PRESENT: THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ.

The Legal Aid Society (Ishrat Ruhi of counsel), for appellant. Slochowsky & Slochowsky, LLP (Charles Loveless of counsel), for respondent.

ORDERED that the appeal is dismissed, all proceedings taken in the Civil Court, including the final judgment entered May 4, 2018 and the order entered September 6, 2018, are vacated, and the petition is dismissed.

Inasmuch as the tenant of record, Dorothy Stewart, the only respondent named in the petition in this nonpayment proceeding, was deceased at the time the proceeding was commenced, the proceeding was a nullity from its inception (see Gorbaty v. Brodsky, 142 AD3d 584 [2016]). This defect could not be cured by stipulating to amend the caption of the "void" petition to substitute occupant Nicholas Stewart for the deceased respondent (Krysa v. Estate of Qyra, 136 AD3d 760, 761 [2016]; see U.S. Bank N.A. v. Cadeumag, 147 AD3d 881 [2017]).

Accordingly, the appeal is dismissed, all proceedings taken in the Civil Court, including the final judgment entered May 4, 2018 and the order entered September 6, 2018, are vacated, and the petition is dismissed.

ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.

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