GIROUX v. DUNLOP TIRE CORPORATION

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Supreme Court, Appellate Division, Fourth Department, New York.

Harry A. GIROUX, Plaintiff-Appellant, v. DUNLOP TIRE CORPORATION, Defendant-Respondent.

Decided: March 18, 2005

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, MARTOCHE, AND PINE, JJ. J. Michael Lennon, Buffalo, for Plaintiff-Appellant. Phillips Lytle LLP, Buffalo (Preston L. Zarlock of Counsel), for Defendant-Respondent.

Plaintiff retained an attorney to represent him in a personal injury action.   Despite the fact that plaintiff thereafter died, the attorney nevertheless engaged in settlement negotiations with defendant's attorney, which included settlement conferences with Supreme Court.   The attorney retained by plaintiff did not, however, advise either defendant's attorney or the court of plaintiff's death. A settlement was reached nearly three years after plaintiff's death, and plaintiff's wife was thereafter appointed administrator of the estate.   She executed a stipulation of settlement and release in the personal injury action, whereupon defendant's attorney learned that plaintiff had died nearly three years before the settlement was reached.   Defendant thereafter brought a motion seeking an order voiding the settlement agreement and dismissing the action with prejudice pursuant to CPLR 1021.   Plaintiff's attorney cross-moved to substitute plaintiff's administrator as plaintiff in the action.   The court granted the motion and denied the cross motion, and we affirm.

 The death of plaintiff “terminated [his] attorney's authority to act and stayed the proceedings pending the substitution of a legal representative” (Weber v. Bellinger, 124 A.D.2d 1009, 1009, 508 N.Y.S.2d 779;  see Thomas v. Benedictine Hosp., 8 A.D.3d 781, 782, 779 N.Y.S.2d 587;  Pavone v. Walters, 214 A.D.2d 1052, 626 N.Y.S.2d 339).   Indeed, “[a] party's death ‘divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a)’ ” (Noriega v. Presbyterian Hosp. in City of N.Y., 305 A.D.2d 220, 221, 761 N.Y.S.2d 18;  see also Schraven v. Town of Tonawanda, 238 A.D.2d 952, 661 N.Y.S.2d 169).   We conclude that plaintiff's attorney failed to seek substitution “within a reasonable time” after plaintiff's death (CPLR 1021) and thus that the court properly granted the motion and denied the cross motion.   Finally, we note that, because plaintiff's attorney cross-moved for substitution, this Court has jurisdiction to decide this appeal (cf. Thomas, 8 A.D.3d at 782, 779 N.Y.S.2d 587;  Schraven, 238 A.D.2d 952, 661 N.Y.S.2d 169).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: