Monteleone v. Hickey

Appellate Division of the Supreme Court of New York

Monteleone v. Hickey

174 A.D.2d 940, 571 N.Y.S.2d 635, 1991 N.Y. App. Div. LEXIS 9457

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

DecidedJune 20, 1991

StatusPublished

Cited by3 cases

This text of 174 A.D.2d 940 (Monteleone v. Hickey) 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

Monteleone v. Hickey, 174 A.D.2d 940, 571 N.Y.S.2d 635, 1991 N.Y. App. Div. LEXIS 9457 (N.Y. Ct. App. 1991).

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Opinion

—Appeal from an order of the Supreme Court (Williams, J.), entered June 18, 1990 in Sullivan County, which granted defendants’ motion to dismiss the complaint for failure to prosecute.

Since a proper substitution of parties in this case was not made prior to the entry of the order granting defendants’ motion to dismiss for failure to prosecute, the order was a nullity and this court has no jurisdiction to hear and determine the appeal (see, Bossert v Ford Motor Co., 140 AD2d 480; Silvagnoli v Consolidated Edison Employees Mut. Aid Socy., 112 AD2d 819). The death of a party terminates his attorney’s authority to act and stays the action pending the substitution of a legal representative (Weber v Bellinger, 124 AD2d 1009). Therefore, given that the order in this case was made between the death of decedent and plaintiff’s substitution as legal representative, it was void (see, Byrd v Johnson, 67 AD2d 992).

Mahoney, P. J., Weiss, Mikoll, Yesawich Jr. and Harvey, JJ., concur. Ordered that the appeal is dismissed, without costs.

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—Appeal from an order of the Supreme Court (Williams, J.), entered June 18, 1990 in Sullivan County, which granted defendants’ motion to dismiss the complaint for failure to prosecute.

Since a proper substitution of parties in this case was not made prior to the entry of the order granting defendants’ motion to dismiss for failure to prosecute, the order was a nullity and this court has no jurisdiction to hear and determine the appeal (see, Bossert v Ford Motor Co., 140 AD2d 480; Silvagnoli v Consolidated Edison Employees Mut. Aid Socy., 112 AD2d 819). The death of a party terminates his attorney’s authority to act and stays the action pending the substitution of a legal representative (Weber v Bellinger, 124 AD2d 1009). Therefore, given that the order in this case was made between the death of decedent and plaintiff’s substitution as legal representative, it was void (see, Byrd v Johnson, 67 AD2d 992).

Mahoney, P. J., Weiss, Mikoll, Yesawich Jr. and Harvey, JJ., concur. Ordered that the appeal is dismissed, without costs.

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Bluebook (online)

174 A.D.2d 940, 571 N.Y.S.2d 635, 1991 N.Y. App. Div. LEXIS 9457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monteleone-v-hickey-nyappdiv-1991.

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