Opinion
September 28, 1999
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about June 30, 1998, which denied defendants' motion to substitute as a defendant the deceased defendant's executrix, and denied plaintiffs' cross motion to restore the action to the calendar with leave to renew upon proper papers that include an affidavit of merit, unanimously reversed, on the law, without costs, the motion and cross motion granted, and the action restored.
Stanley P. Danzig, for plaintiff-appellant.
Jonathan Rubin, for defendants-respondents.
ELLERIN, P.J., TOM, MAZZARELLI, WALLACH, LERNER, JJ.
The death of the defendant Eliott Goodman in April 1995 divested the IAS court of jurisdiction to dismiss the action one year later while substitution of a legal representative for the deceased defendant was pending. Therefore, the order of dismissal of the action is void (Harding v. Noble Taxi Corp., 155 A.D.2d 265; Silvagnoli v. Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819).
Inasmuch as the executrix now seeks substitution, her motion should be granted and the action restored to active status.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.