Opinion
No. 10010/2008.
2010-10-1
Jaime TORO, Plaintiff, v. VILLAGE MALL AT HILLCREST CONDOMINIUM et al., Defendant.
David Horowitz, P.C., by Steven J. Horowitz, Esq., New York, for Plaintiff. Law Office of Margaret G. Klein & Associates, by A. Jeffrey Spiro, Esq., New York, for Defendant Village Mall at Hillcrest Condominium.
David Horowitz, P.C., by Steven J. Horowitz, Esq., New York, for Plaintiff. Law Office of Margaret G. Klein & Associates, by A. Jeffrey Spiro, Esq., New York, for Defendant Village Mall at Hillcrest Condominium.
CHARLES J. MARKEY, J.
Defendant seeks leave to reargue its prior motion for summary judgment resulting in this Court's order dated March 23, 2010.
A prior motion for summary judgment by defendant Village Mall at Hillcrest Condominium (Condominium) was denied by order of this Court dated March 23, 2010. However, plaintiff Jaime Toro died on or about February 26, 2010, prior to the issuance of said order. As of this date, the personal representative of decedent's estate has not been substituted as plaintiff (CPLR 1015, 1021).
Upon the death of a party, the Court is divested of jurisdiction to conduct proceedings in an action, and the matter is automatically stayed until a proper substitution of the personal representative of the estate of decedent is made (Manto v. Cerbone, 71 AD3d 1099 [2nd Dept.2010]; Abley Props., Inc. v. Reid, 52 AD3d 442, 442 [2nd Dept.2008]; Rumola v. Maimonides Med. Ctr., 37 AD3d 696 [2nd Dept.2007]; Singer v. Riskin, 32 AD3d 839 [2nd Dept.2006]; 1 N.Y. Jur.2d “Actions” §§ 120 & 121).
Any determination rendered without such substitution is a nullity ( see, Stancu v. Cheon Hyang Oh, 74 AD3d 1322 [2nd Dept.2010]; Griffin v. Manning, 36 AD3d 530, 532 [1st Dept.2007]; Singer, 32 AD3d at 840;see, e.g., Cueller v. Betanes Food Corp., 24 AD3d 201 [1st 2005]; Thomas J. McAdam Liquors, Inc. v. Senior Living Options, Inc., 2008 WL 2401464 [Sup.Ct. New York County 2008] ). In addition, the authority of a deceased party's attorney to act on behalf of the client terminates upon the party's death. (Lewis v. Kessler, 12 AD3d 421 [2nd Dept.2004]; Hyman v. Booth Mem. Hosp., 306 A.D.2d 438 [2nd Dept.2003].)
Accordingly, the Court will not entertain this motion for leave to reargue. Furthermore, the prior order dated March 23, 2010, is deemed a nullity and is vacated (Bluestein v. City of New York, 280 A.D.2d 506 [2nd Dept.2001]; Singer, 32 AD3d at 839–840;Klaus v. Schepps, 15 AD3d 626 [2nd Dept.2005]; Coverdale v. Zucker, 302 A.D.2d 348 [2nd Dept.2003] ).
The Court vacates its prior order of March 23, 2010.
The foregoing constitutes the decision and order of the Court.