Opinion
06-17-2016
Scott SCHAFFER, Plaintiff–Appellant, v. Lorraine JASKOWIAK and Leonard J. Jaskowiak (Deceased), Defendants–Respondents.
Athari & Associates, LLC, New Hartford (Andrew L. Boughrum of Counsel), for Plaintiff–Appellant. Barclay Damon, LLP, Buffalo (David M. Hehr of Counsel), for Defendants–Respondents.
Athari & Associates, LLC, New Hartford (Andrew L. Boughrum of Counsel), for Plaintiff–Appellant.
Barclay Damon, LLP, Buffalo (David M. Hehr of Counsel), for Defendants–Respondents.
PRESENT: SMITH, J.P., CENTRA, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: Plaintiff commenced this action seeking damages for injuries he allegedly sustained as a result of exposure to lead paint as a child while living in an apartment owned by Lorraine Jaskowiak (defendant) and Leonard J. Jaskowiak (decedent), who died in 1992. “Since ‘[a] party may not commence a legal action or proceeding against a dead person’ ..., the action [against decedent] was a ity from its inception” (Krysa v. Estate of Qyra, 136 A.D.3d 760, 760, 24 N.Y.S.3d 534 ). “Under these circumstances, the order appealed from, insofar as it purports to affect [decedent], was a ity and this Court has no jurisdiction to hear and determine that purported appeal” (Jordan v. City of New York, 23 A.D.3d 436, 437, 807 N.Y.S.2d 595 ). We otherwise affirm the order for reasons stated in the decision at Supreme Court.
It is hereby ORDERED that said appeal insofar as it concerns defendant Leonard J. Jaskowiak (Deceased) is unanimously dismissed, that part of the order concerning that defendant is vacated and the complaint against that defendant is dismissed, and the order is otherwise affirmed without costs.