Opinion
2021-70631 Motion 2019-01488 SC
07-27-2021
Mildred B. DeVito Revocable Trust, Respondent, v. Arthur DeVito, Appellant.
Unpublished Opinion
MOTION DECISION
TERRY JANE RUDERMAN, P.J. ELIZABETH H. EMERSON TIMOTHY S. DRISCOLL, JJ.
ORDER TO SHOW CAUSE
Appeal from an order of the District Court of Suffolk County, Third District, entered August 8, 2019. This proceeding is maintainable, if at all, if a trustee is substituted as the real party in interest. By decision and order of this court dated November 18, 2019, on the court's own motion, this court held the appeal and a motion by respondent seeking a stay pending the determination of the appeal in abeyance so that a hearing could be conducted to determine whether Mildred B. DeVito, who purportedly signed the petition as trustee, is an adult incapable of adequately prosecuting her rights. During the pendency of the appeal, Mildred B. DeVito died and, by decision and order of this court dated December 14, 2020, on the court's own motion, this court held the appeal and motion in abeyance pending a substitution of another trustee as the petitioner.
More than six months having elapsed since notice of the death was given to the court and no motion having been made to dismiss the appeal or to substitute petitioner, it is, on the court's own motion, ORDERED that the parties to the appeal, or their attorneys, show cause before this court pursuant to CPLR 1021 why an order should not be made pursuant to CPLR 1021 dismissing the appeal for failure to effect timely substitution by filing an affidavit or affirmation on that issue with the Clerk of this court on or before August 17, 2021; and it is further, ORDERED that the Clerk or his designee shall send a copy of this order to show cause to the attorneys for the respective parties by regular mail.