Janvier v. Allen

249 A.D.2d 448, 671 N.Y.S.2d 323, 1998 N.Y. App. Div. LEXIS 4276

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Cora Patterson appeals, (1) as limited by her brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated August 6, 1997, as sua sponte directed her to appoint an administrator for the estate of the deceased defendant, Joyce A. Allen, on or before September 8, 1997, and (2) an order of the same court, dated September 19, 1997, which, in effect, denied her motion for reargumeiit.

Ordered that on the Court’s own motion, the appellant’s notice of appeal from the sua sponte order dated August 6, 1997, is treated as an application for leave to appeal, and leave to appeal is granted; and it is further,

Ordered that the appeal from the order dated September 19, 1997, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated August 6, 1997, is reversed insofar as appealed from, and the plaintiffs are directed to apply for the appointment of an administrator for the estate of the deceased defendant, Joyce A. Allen, and upon said appointment, to apply for substitution of the administrator as a party defendant in the place and stead of the deceased defendant, Joyce A. Allen; and it is further,

Ordered that the appellant is awarded one bill of costs.

Under the circumstances of this case, the Supreme Court should have directed the plaintiffs, inter alia, to apply for the appointment of an administrator for the estate of the deceased defendant, Joyce A. Allen (see, Meehan v Washington, 242 AD2d 286; Butts v Marx, 148 Misc 2d 405). Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.