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.
ORDER TO SHOW CAUSE
Appeal from an order of the Civil Court of the City of New York, Queens County, entered August 31, 2017. Counsel for appellant and respondent appeared for a CAMP conference on January 22, 2018. In a decision and order dated May 31, 2019, this court reversed the order of the Civil Court, denied plaintiffs' cross-motion to amend the complaint and so much of the order as struck defendant's discovery demands was vacated, and the matter was remitted to the Civil Court for a new determination of the branch of defendants' motion seeking to dismiss the complaint. Various proceedings were thereafter conducted in the Civil Court, culminating in an order striking plaintiffs' claims pursuant to CPLR 3126, and granting defendants' counterclaims. Thereafter, in the course of conducting an asset search concerning plaintiffs, defendants discovered that plaintiff Balvir Singh had died on January 19, 2018, three days before the CAMP conference, more than 16 months before the Appellate Term decided the appeal and nearly two years before the Civil Court conducted various post-appeal proceedings.
Now on the court's own motion, it is
ORDERED that respondent Lakhwinder Singh and/or respondents' counsel are directed to show cause before this Court why an order should or should not be made and entered imposing such sanctions, if any, against the respondent or respondents' counsel pursuant to 22 NYCRR 730.3 (c) as this Court may deem appropriate by filing an affirmation or affidavit on that issue in the office of the Clerk of this Court and serving one copy of the same on all parties to the action on or before April 30, 2021.
Section 730.3 (c) of the rules of this Court provides, in relevant part, as follows: (c) "Notice of Change of Circumstances... [t]he parties or their attorneys shall likewise immediately notify the court if the appeal should not be calendared because of the death of a party...[a]ny such notification shall be followed by an application for the appropriate relief... [a]ny party who, without good cause shown, fails to comply with the requirements of this subdivision may be subject to the imposition of sanctions." (22 NYCRR 730.3 [c]).
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). In the absence of a substitution, this court is without jurisdiction to proceed (see, Singer v Riskin, 32 AD3d 839 [2d Dept 2006]). Thus, the decision and order of this court was rendered without jurisdiction and is a nullity.
The Clerk of this Court, or his designee, is directed to serve a copy of this order to show cause upon counsel for the respective parties by regular mail.
ENTER:
Paul Kenny
Chief Clerk