Arena v. Manganello

Appellate Division of the Supreme Court of New York

Arena v. Manganello

31 A.D.2d 540, 295 N.Y.S.2d 170, 1968 N.Y. App. Div. LEXIS 2934

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 12, 1968

StatusPublished

Cited by5 cases

This text of 31 A.D.2d 540 (Arena v. Manganello) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arena v. Manganello, 31 A.D.2d 540, 295 N.Y.S.2d 170, 1968 N.Y. App. Div. LEXIS 2934 (N.Y. Ct. App. 1968).

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Opinion

Appeal by defendants from an order of the Supreme Court, Nassau County, dated February 19, 1968, which denied their motion to dismiss the complaint on the ground that it fails to state a cause of action. Appeal dismissed insofar as it purports to be by defendants Frezzano and Gentile, without costs. Order affirmed insofar as it affects the remaining defendants, with $10 costs and disbursements against said defendants. The time within which said remaining defendants may answer the complaint is extended until 20 days after entry of the order hereon. It appears that prior to the making of the motion presently under review defendant Prezzano died and that after the order appealed from was made, but prior to the taking of the appeal, defendant Gentile died. There has been no substitution for either of these two defendants. Hence the notice of appeal, insofar as it purports to be by them, is void and cannot bring the purported appeal by them before this court; and Special Term lacked jurisdiction to pass on the motion insofar as it was purportedly made by Prezzano (Warren v. Cole, 29 A D 2d 988; Chimenti v. Hertz Corp., 25 A D 2d 562; Matter of Huberman v. O’Connell, 282 App. Div. 762). Beldock, P. J., Christ, Rabin, Hopkins and Benjamin, JJ., concur.

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Appeal by defendants from an order of the Supreme Court, Nassau County, dated February 19, 1968, which denied their motion to dismiss the complaint on the ground that it fails to state a cause of action. Appeal dismissed insofar as it purports to be by defendants Frezzano and Gentile, without costs. Order affirmed insofar as it affects the remaining defendants, with $10 costs and disbursements against said defendants. The time within which said remaining defendants may answer the complaint is extended until 20 days after entry of the order hereon. It appears that prior to the making of the motion presently under review defendant Prezzano died and that after the order appealed from was made, but prior to the taking of the appeal, defendant Gentile died. There has been no substitution for either of these two defendants. Hence the notice of appeal, insofar as it purports to be by them, is void and cannot bring the purported appeal by them before this court; and Special Term lacked jurisdiction to pass on the motion insofar as it was purportedly made by Prezzano (Warren v. Cole, 29 A D 2d 988; Chimenti v. Hertz Corp., 25 A D 2d 562; Matter of Huberman v. O’Connell, 282 App. Div. 762). Beldock, P. J., Christ, Rabin, Hopkins and Benjamin, JJ., concur.

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Bluebook (online)

31 A.D.2d 540, 295 N.Y.S.2d 170, 1968 N.Y. App. Div. LEXIS 2934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arena-v-manganello-nyappdiv-1968.

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