Flaherty v. Lynch

Appellate Division of the Supreme Court of New York

Flaherty v. Lynch

265 A.D.2d 376, 696 N.Y.S.2d 516, 1999 N.Y. App. Div. LEXIS 10204

Appellate Division of the Supreme Court of the State of New York·Decided October 12, 1999·Published·Cited by 2 cases

Opinion

—In an action for a divorce and ancillary relief, (1) the defendant appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated December 24, 1997, which denied his motion to abate the action on the ground that the plaintiff died prior to entry of the judgment of divorce, and (2) the representatives of the plaintiff’s estate, Patricia Flaherty, Linda A. Kacewicz, and Michael P. Franchi, appeal from an order of the same court, dated October 28, 1998, which denied their cross motion, inter alia, for entry of a judgment of divorce nunc pro tunc.

Ordered that the appeals are dismissed, without costs or disbursements.

The plaintiff Debra Lynch died before either of the orders appealed from were issued. There was no effective substitution for the plaintiff as required by CPLR 1015 prior to the issuance of either of the orders. Thus, the orders appealed from are nullities and this Court has no jurisdiction to entertain the appeals (see, Balestra v Donohue, 237 AD2d 237; Wilson v Rosen, 166 AD2d 441). Santucci, J. P., Thompson, Joy and McGinity, JJ., concur.

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—In an action for a divorce and ancillary relief, (1) the defendant appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated December 24, 1997, which denied his motion to abate the action on the ground that the plaintiff died prior to entry of the judgment of divorce, and (2) the representatives of the plaintiff’s estate, Patricia Flaherty, Linda A. Kacewicz, and Michael P. Franchi, appeal from an order of the same court, dated October 28, 1998, which denied their cross motion, inter alia, for entry of a judgment of divorce nunc pro tunc.

Ordered that the appeals are dismissed, without costs or disbursements.

The plaintiff Debra Lynch died before either of the orders appealed from were issued. There was no effective substitution for the plaintiff as required by CPLR 1015 prior to the issuance of either of the orders. Thus, the orders appealed from are nullities and this Court has no jurisdiction to entertain the appeals (see, Balestra v Donohue, 237 AD2d 237; Wilson v Rosen, 166 AD2d 441). Santucci, J. P., Thompson, Joy and McGinity, JJ., concur.

Flaherty v. Lynch, 265 A.D.2d 376, 696 N.Y.S.2d 516, 1999 N.Y. App. Div. LEXIS 10204 (N.Y. Ct. App. 1999).

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Opinion

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