Opinion
June 4, 1970
Order entered November 24, 1969 denying the motion to substitute the administrator of the estate of Ercelle Harmon Moore as party plaintiff in place of Ercelle Harmon Moore, deceased, and granting the cross motion of the defendants to dismiss the complaint, unanimously reversed on the law, the motion granted and the cross motion dismissed, without costs and without disbursements. As the Special Term originally noted, an action in libel and slander does not abate upon the death of the plaintiff, except insofar as punitive damages are sought. (EPTL 11-3.2.) On reargument, the court found that the compensatory damages allegedly sustained by the plaintiff, the loss of salary and emoluments, did not flow from the tortious acts of the defendants. Upholding a claim of qualified privilege on the defendants' part, the court concluded that the loss of the deceased's postion as Imperial Commandress was dictated by the by-laws of the organization which directed her suspension pending the hearing and determination of the charges against her. Accordingly, the cross motion to dismiss the complaint was granted. It had previously been established as the law of the case, however, that the papers raised triable issues on the question of express malice or actual ill-will affecting the defense of privilege. (See Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 61.) In any event, until substitution of the plaintiff's administrator, no proceeding could be taken in the action by the defendants so that Special Term lacked jurisdiction to pass upon the cross motion. ( Warren v. Cole, 29 A.D.2d 988, affd. 26 N.Y.2d 803; Thompson v. Raymond Kramer, Inc., 23 A.D.2d 746; Dooley v. Gray, 22 A.D.2d 791; Ruderman v. Feffer, 10 A.D.2d 704. ) Hence, the cross motion should have been dismissed.
Concur — Capozzoli, J.P., Markewich, Steuer and Tilzer, JJ.