Opinion
01-28-2016
Wayne SCHNAPP, Plaintiff–Appellant, Joanne Schnapp, Plaintiff, v. MILLER'S LAUNCH, INC., Defendant–Respondent.
Hofmann & Schweitzer, New York (Paul T. Hofmann of counsel), for appellant. Rubin, Fiorella & Friedman, LLP, New York (Michael E. Stern of counsel), for respondent.
Hofmann & Schweitzer, New York (Paul T. Hofmann of counsel), for appellant.
Rubin, Fiorella & Friedman, LLP, New York (Michael E. Stern of counsel), for respondent.
TOM, J.P., SWEENY, GISCHE, KAPNICK, JJ.
Appeal from order, Supreme Court, New York County (Lucy Billings, J.), entered January 6, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously dismissed, without costs.
Plaintiff Wayne Schnapp has advised this Court that his wife, plaintiff Joanne Schnapp, died during the pendency of this action. That notification is contained in his appellate brief, without any indication of when her death occurred. As of this date, there has been no substitution of a personal representative.
"If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties" (CPLR 1015[a] ). Furthermore, the death of a party divests the court of jurisdiction and stays the proceedings until proper substitution has been made (CPLR 1015[a], 1021 ; see Noriega v. Presbyterian Hosp. in the City of New York, 305 A.D.2d 220, 221, 761 N.Y.S.2d 18 [1st Dept.2003] ).
Here, if the underlying motion for summary judgment was made before co-plaintiff's death, it was proper for the motion court to have entertained it (Gonzalez v. 231 Ocean Assoc., 131 A.D.3d 871, 872, 16 N.Y.S.3d 542 [1st Dept.2015], citing CPLR 1015 ). However, there is no proof of when plaintiff's wife died. Once she died there was an automatic stay of all proceedings until a proper substitution was made (see Noriega v. Presbyterian Hosp. in City of N.Y., supra). Any determination that was rendered after her death, but before substitution of a legal representative for her would, therefore, be void (Griffin v. Manning, 36 A.D.3d 530, 828 N.Y.S.2d 372 [1st Dept.2007] ; Singer v. Raskin, 32 A.D.3d 839, 821 N.Y.S.2d 120 [2d Dept.2006] ). If plaintiff's wife's death occurred before the motion court decided the motion, the court's determination is void. Whether she died before or after this appeal was filed, this court lacks jurisdiction to review the motion court's decision because to date there has been no proper substitution (see Silvagnoli v. Consolidated Edison Employ. Mut. Aid Soc., 112 A.D.2d 819, 492 N.Y.S.2d 619 [1st Dept.1985] ; Singer v. Riskin, 32 A.D.3d at 840, 821 N.Y.S.2d 120 ). Since we do not address the merits of the underlying appeal, this dismissal is without prejudice.
If that is the case, nothing in the record indicates that it was brought to the motion court's attention.