Opinion
Motion No: 2019-01084 KC
06-10-2021
Betty Igbayo, Chibuzo Okwuaka, Lukmon Ajasa, Gina Newson, Clarence Regis, Judy Regis, Dehomey Agrippa, Cecelia Lindsay, Thurston Williams, Mary Williams, Lester Morris, Melissa Morris, Pauline Bygrave, Neville Ramsaran, Jacqueline Ifill, Oswald Francois, Denise Powell, Natalie baker, Yvette Sarvis and Christobel Mars, Appellants, v. Kings & Queens Holdings, LLC, Urban American Management, LLC, Antoinette Travaglino, The Department of Housing Preservation and Development, and New York City Department of Buildings, Respondents.
DAVID ELLIOT
WAVNY TOUSSAINT, JJ.
DECISION & ORDER ON MOTION
Motion by appellant to vacate the dismissal of an appeal from an order of the Civil Court of the City of New York, Kings County, entered April 17, 2019, and, upon vacatur, to substitute Ruth Igbayo and Willa Igbayo as administrators of the estate of deceased appellant Betty Igbayo, and to amend the caption accordingly.
Upon the papers filed in support of the motion and the papers having been filed in opposition thereto, it is
ORDERED that the branch of the motion seeking to vacate the dismissal of the appeal is granted on condition that the appeal be perfected on or before July 21, 2021; and it is further
ORDERED that in the event the appeal is not perfected by July 21, 2021, the court, on its own motion, may dismiss the appeal, or respondent may move, on three days' notice, to dismiss the appeal and may serve the appellant in person; and it is further
ORDERED that the branches of the motion to substitute Ruth Igbayo and Willa Igbayo as administrators of the estate of deceased appellant Betty Igbayo, and to amend the caption accordingly, are granted; and it is further
ORDERED on the court's own motion, that the stay in effect as a result of the death of appellant Betty Igbayo, is hereby vacated.
Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings pending the substitution of a legal representative for the decedent (Aurora Bank FSB v Albright, 137 AD3d 1177 [2d Dept 2016]), and "any determination rendered without such substitution is generally deemed a nullity." (Hicks v Jeffrey, 304 AD2d 618 [2d Dept 2003]; see also Reed v Grossi, 59 AD3d 509 [2d Dept 2006], CPLR 1015). In the absence of a substitution, this court is without jurisdiction to proceed (see, Singer v Riskin, 32 AD3d 839 [2d Dept 2006]). Thus, it would appear that the death of appellant Igbayo stayed the proceeding and rendered the dismissal order a nullity.
ENTER:
Paul Kenny
Chief Clerk