Opinion
2018–05681 Index No. 14388/15
07-10-2019
Franklyn FRANCO, Respondent, v. Arthur C. KETTERER, Appellant.
Buratti, Rothenberg & Burns, Melville, N.Y. (Scott R. Dinstell of counsel), for appellant. Pontisakos & Brandman, P.C. (Chirico Law, PLLC, Brooklyn, N.Y. [Vincent Chirico ], of counsel), for respondent.
Buratti, Rothenberg & Burns, Melville, N.Y. (Scott R. Dinstell of counsel), for appellant.
Pontisakos & Brandman, P.C. (Chirico Law, PLLC, Brooklyn, N.Y. [Vincent Chirico ], of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER ORDERED that the appeal is dismissed, without costs or disbursements, the order dated March 22, 2018, is vacated, and the complaint is dismissed.
The death of the named defendant, Arthur C. Ketterer, several months prior to the commencement of this action rendered the action a legal nullity from its inception (see Rivera v. Bruchim , 103 A.D.3d 700, 700, 959 N.Y.S.2d 448 ). Under these circumstances, the Supreme Court was without jurisdiction to entertain the underlying motion and cross motion, and the order dated March 22, 2018, must be vacated as a nullity. Likewise, the notice of appeal purportedly filed on behalf of Arthur C. Ketterer is a nullity and this Court has no jurisdiction to hear and determine the purported appeal (see Rivera v. Bruchim , 103 A.D.3d at 700, 959 N.Y.S.2d 448 ; Jordan v. City of New York , 23 A.D.3d 436, 437, 807 N.Y.S.2d 595 ).
Accordingly, we dismiss the appeal, vacate the order, and dismiss the complaint.
SCHEINKMAN, P.J., RIVERA, COHEN and HINDS–RADIX, JJ., concur.