Opinion
November 10, 1986
Appeal from the Supreme Court, Herkimer County, Aloi, J.
Present — Dillon, P.J., Callahan, Doerr, Boomer and Schnepp, JJ.
Appeal unanimously dismissed without costs, for reasons stated in the following memorandum: Special Term had no jurisdiction to rule upon defendants' motion to dismiss pursuant to CPLR 1021 and this court lacks jurisdiction to entertain an appeal.
After commencement of an action for personal injuries, plaintiff died. That event terminated her attorney's authority to act and stayed the proceedings pending substitution of a legal representative (CPLR 1015; Matter of Einstoss, 26 N.Y.2d 181; Silvagnoli v Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819). No administrator was appointed for the estate, and after almost two years defendants moved for dismissal on the ground that substitution was not made within a reasonable time. Special Term granted that motion without complying with the directive that notice first be given to those interested in decedent's estate to show cause why dismissal should not be granted (CPLR 1021). Accordingly, the court lacked jurisdiction, and its order is a nullity (see, Silvagnoli v Consolidated Edison Employees Mut. Aid Socy., supra; Dorney v Reddy, 45 A.D.2d 754). This dismissal does not preclude an application to have a representative substituted for plaintiff, nor does it preclude a new motion at Special Term for the relief which defendants seek after such substitution or upon proper notice to those interested in plaintiff's estate.