In re the Estate of Leopold

Appellate Division of the Supreme Court of New York

In re the Estate of Leopold

32 A.D.3d 1227, 820 N.Y.S.2d 837

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

DecidedSeptember 22, 2006

StatusPublished

Cited by1 cases

This text of 32 A.D.3d 1227 (In re the Estate of Leopold) 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.

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In re the Estate of Leopold, 32 A.D.3d 1227, 820 N.Y.S.2d 837 (N.Y. Ct. App. 2006).

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[1228]*1228Appeal from an order of the Surrogate’s Court, Erie County (Barbara Howe, S.), entered February 2, 2005. The order, among other things, granted petitioner’s motion for summary judgment.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: On February 1, 2005, Surrogate’s Court, inter alia, granted petitioner’s motion for summary judgment. However, Mary H. Tuppen, executor of respondent estate of Charles D. Tuppen, Jr., had died on an undisclosed date, her successor executor having been appointed on December 20, 2004. The successor executor has not been substituted as a respondent in this proceeding, and thus the Surrogate “lacked jurisdiction to rule on the motion and the order . . . is a nullity” (Schraven v Town of Tonawanda, 238 AD2d 952, 952 [1997]; see Kelly v Methodist Hosp., 276 AD2d 672, 672-673 [2000]; Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819, 820 [1985]). “In addition, this Court has no jurisdiction to entertain the instant appeal” (Schraven, 238 AD2d at 952; see Kelly, 276 AD2d at 673; Pavone v Walters, 214 AD2d 1052 [1995]). This dismissal does not preclude an application to have the successor executor substituted as a respondent, nor does it preclude a new motion for summary judgment (see Weber v Bellinger, 124 AD2d 1009 [1986]; Silvagnoli, 112 AD2d at 821). Present — Pigott, Jr., P.J, Hurlbutt, Scudder, Kehoe and Green, JJ.

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[1228]*1228Appeal from an order of the Surrogate’s Court, Erie County (Barbara Howe, S.), entered February 2, 2005. The order, among other things, granted petitioner’s motion for summary judgment.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: On February 1, 2005, Surrogate’s Court, inter alia, granted petitioner’s motion for summary judgment. However, Mary H. Tuppen, executor of respondent estate of Charles D. Tuppen, Jr., had died on an undisclosed date, her successor executor having been appointed on December 20, 2004. The successor executor has not been substituted as a respondent in this proceeding, and thus the Surrogate “lacked jurisdiction to rule on the motion and the order . . . is a nullity” (Schraven v Town of Tonawanda, 238 AD2d 952, 952 [1997]; see Kelly v Methodist Hosp., 276 AD2d 672, 672-673 [2000]; Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819, 820 [1985]). “In addition, this Court has no jurisdiction to entertain the instant appeal” (Schraven, 238 AD2d at 952; see Kelly, 276 AD2d at 673; Pavone v Walters, 214 AD2d 1052 [1995]). This dismissal does not preclude an application to have the successor executor substituted as a respondent, nor does it preclude a new motion for summary judgment (see Weber v Bellinger, 124 AD2d 1009 [1986]; Silvagnoli, 112 AD2d at 821). Present — Pigott, Jr., P.J, Hurlbutt, Scudder, Kehoe and Green, JJ.

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32 A.D.3d 1227, 820 N.Y.S.2d 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-leopold-nyappdiv-2006.

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