LIVSHITS v. Catherine S. Barry, Appellant.

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

Oleg LIVSHITS, et al., Respondents, v. Oleg RAGINSKIY, defendant, Catherine S. Barry, Appellant.

Decided: December 24, 2001

DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN and STEPHEN G. CRANE, JJ. Nicolini & Paradise (Rivkin Radler, LLP, Uniondale, N.Y. [Evan H. Krinick, M. Paul Gorfinkel, and Merril S. Biscone] of counsel), for appellant.

In an action to recover damages for personal injuries, etc., the defendant Catherine S. Barry purportedly appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated June 21, 2000, as conditionally granted her motion to dismiss the complaint insofar as asserted against her based on lack of personal jurisdiction unless the plaintiffs served a proper party in 30 days.

ORDERED that the purported appeal is dismissed, without costs or disbursements, the order dated June 21, 2000, is vacated, the action insofar as asserted against the defendant Catherine S. Barry is dismissed, and the action against the remaining defendant is severed.

When this action was commenced in 1998, the defendant Catherine S. Barry was deceased.   In 2000 Barry purportedly moved to dismiss the complaint insofar as asserted against her based on lack of personal jurisdiction.   While an administrator for Barry's estate was appointed in 1996, the estate was not made a party to the action.   Since the Supreme Court was without jurisdiction, the order purportedly appealed from is a nullity, and the action insofar as asserted against Barry is dismissed (see, Berlinger v. City of New York, 289 A.D.2d 188, 733 N.Y.S.2d 914;  Bluestein v. City of New York, 280 A.D.2d 506, 720 N.Y.S.2d 378;  Cocozzelli, Lerner, Meunkle & Grossman v. Basile, 247 A.D.2d 354, 668 N.Y.S.2d 632).   Furthermore, the purported appeal from the order must be dismissed, as this court has no jurisdiction to hear and determine the appeal (see, Cocozzelli, Lerner, Meunkle & Grossman v. Basile, supra).

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