Chimenti v. Hertz Corp.

25 A.D.2d 562, 267 N.Y.S.2d 730, 1966 N.Y. App. Div. LEXIS 4836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1966
• Status: Published

Opinions

'In a negligence action to recover damages for personal injury, in which this court previously granted a new trial (Chimenti v. Hertz Corp., 23 A D 2d 495), the defendants (purportedly including defendant Frey) appeal from an order of the 'Supreme Court, Queens County, entered October 15, 1965, which granted plaintiff’s motion for leave to serve an amended complaint and an amended bill of particulars. Appeal, insofar as it purports to be by defendant Frey dismissed, without costs. Order, insofar as it affects the remaining appellants, affirmed, without costs. The proposed amended complaint and the proposed amended bill of particulars printed in the record on appeal shall be deemed to have been served and the time to answer is extended until 10 days after entry of the order hereon. It appears that after the first trial but prior to the making of the motion presently under review, the defendant Frey died. There has been no substitution for him by a representative of his estate. Hence the notice of appeal, insofar as it purports to be by him, is void and cannot bring the appeal before this court (Speier v. St. Francis Church, 3 A D 2d 732; Matter of Huberman v. O’Connell, 282 App. Div. 762, 770). It should be noted that the Special Term likewise lacked jurisdiction to pass on the motion as to him (cf. CPLR 5016, subd. [d]).

Beldoek, P. J., Christ, Rabin and Hopkins, JJ., concur;