Abramowitz v. American General Contracting Co.

239 A.D.2d 303, 658 N.Y.S.2d 24, 1997 N.Y. App. Div. LEXIS 5716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about May 26, 1995, which, insofar as appealed from, granted plaintiffs motion to confirm the Special Referee’s report finding personal jurisdiction over defendant-appellant, granted the motion of plaintiffs administrator to be substituted for plaintiff, and denied defendant’s motion to dismiss the complaint for failure to substitute plaintiff’s administrator in timely manner, unanimously affirmed, with costs.

We find that defendant participated in the traverse with full knowledge of plaintiff’s death, and accordingly waived any claim that the traverse was a nullity because it took place without a proper substitution of the deceased plaintiffs representative (see, Nieves v 331 E. 109th St. Corp., 112 AD2d 59, 60-61). Defendant’s claim of prejudice as a result of the delay in substituting plaintiffs representative is improperly raised for the first time on appeal, and, in any event, without merit. Concerning the traverse, we agree with the motion court that the findings of the Special Referee are substantially supported by the record, and should be confirmed. Concur—Murphy, P. J., Sullivan, Nardelli and Tom, JJ.