Opinion
May 29, 1997
Appeal from Supreme Court, New York County (Martin Schoenfeld, J.).
We find that defendant participated in the traverse with full knowledge of plaintiff's death, and accordingly waived any claim that the traverse was a nullity because it took place without a proper substitution of the deceased plaintiffs representative ( see, Nieves v. 331 E. 109th St. Corp., 112 A.D.2d 59, 60-61). Defendant's claim of prejudice as a result of the delay in substituting plaintiffs representative is improperly raised for the first time on appeal, and, in any event, without merit. Concerning the traverse, we agree with the motion court that the findings of the Special Referee are substantially supported by the record, and should be confirmed.
Concur — Murphy, P.J., Sullivan, Nardelli and Tom, JJ.