Opinion
Motion No: 2011-00282 sc
08-01-2011
Vincent D'Accolti and Mary D'Accolti (Deceased), Respondents, v. Vailankani, Inc., Appellant, and "John Doe" and "Jane Doe", Undertenants.
, P.J.
MELVYN TANENBAUM
JOHN R. LaCAVA, JJ.
DECISION & ORDER ON MOTION
Appeal from an order of the District Court of Suffolk County, Sixth District, entered October 28, 2010. The order denied appellant's motion to, among other things, vacate a final judgment entered following a default under a stipulation of settlement.
On the court's own motion, it is
ORDERED that the appeal is dismissed and the order entered October 28, 2010 vacated.
The appeal is dismissed and the order appealed from vacated because, as indicated in the caption, respondent Mary D'Accolti was deceased at the time the proceeding was commenced (see Rocha v Figueirdo, 50 AD3d 876 [2008]) and because respondent Vincent D'Accolti died subsequent to the commencement of the proceeding and prior to the making of the motion giving rise to the order appealed from, and no substitution was made (see European Am. Bank v Strab Constr. Corp., 196 AD2d 479 [1993]). We note that the death of Vincent D'Accolti divested the court of jurisdiction to conduct any proceedings, including the entry of the final judgment, until a proper substitution had been made (see Paul v Ascher, 106 AD2d 619 [1984]).
ENTER:
Paul Kenny
Chief Clerk