Opinion
Motion No: 2017-02152 QC
04-01-2021
Balvir Singh and Lakhwinder Singh, Respondents, v. Madhu Restaurant, Inc., and John S. Desiderio, Esq., as Stakeholder Only, Appellants.
MICHELLE WESTON
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
Appeal from an order of the Civil Court of the City of New York, Queens County, entered August 31, 2017. Appellant moves for an order: 1) "restoring the appeal to the court's docket," 2) pursuant to CPLR 1021 substituting the administrator of the Estate of Balvir Singh as respondent on the place of Balvir Singh, and amending the caption accordingly; and 3) directing the respondent to show cause why their claims should not be dismissed for failing to timely seek a substitution.
Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is
ORDERED that the branch of the motion for an order "restoring the appeal to the court's docket" is denied with leave to renew upon a proper substitution for deceased plaintiff; and it is further,
ORDERED that the branches of the motion to substitute the administrator of the Estate of Balvir Singh as respondent in the place of Balvir Singh and amending the caption to reflect such substitution are denied with leave to renew before the Civil Court; and it is further,
ORDERED that the branch of the motion seeking an order directing respondent to show cause why their claims should not be dismissed for failure to timely seek a substitution is denied with leave to renew before the Civil Court.
Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings pending the substitution of a legal representative for the decedent (Aurora Bank FSB v Albright, 137 AD3d 1177 [2d Dept 2016]), and "any determination rendered without such substitution is generally deemed a nullity" (Hicks v Jeffrey, 304 AD2d 618 [2d Dept 2003]; see also Reed v Grossi, 59 AD3d 509 [2d Dept 2006], CPLR 1015). As such, all proceedings occurring after respondent Balvir Singh's death on January 19, 2018, including this court's decision and order rendered May 31, 2019, were nullities. In the absence of a substitution, this court is without jurisdiction to proceed (see, Singer v Riskin, 32 AD3d 839 [2d Dept 2006]). While the failure to seek substitution "within a reasonable time" after plaintiff's death (CPLR 1021) subjects the action to dismissal (Giroux v Dunlop Tire Corp., 16 AD3d 1068 [4th Dept 2005]), such action is more appropriately addressed by the trial court.
ENTER:
Paul Kenny
Chief Clerk