Nigro v. Perry Truck Rental Corp.

40 A.D.2d 1019, 339 N.Y.S.2d 653, 1972 N.Y. App. Div. LEXIS 3014

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1972
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries of the plaintiff wife, etc., defendants appeal from a judgment of the Supreme Court, Kings County, dated March 6, 1972, in favor of plaintiffs on the issue of liability, upon a jury verdict, after trial on that issue only. Judgment affirmed insofar as it is in favor of plaintiff Louise Nigro, with costs. No opinion. Appeal dismissed insofar as it is in favor of plaintiff Alfred Nigro, without costs and without prejudice to such further proceedings as the parties may be advised to institute. It appears from the statement made pursuant to CPLR 5531 that plaintiff Alfred Nigro died before the trial. No executor or administrator had been substituted for him as a party plaintiff. Under the circumstances, the judgment as to him is a nullity and the appeal from the judgment must be dismissed insofar as it relates to him (Goldbard v. Kirchik, 20 A D 2d 725; Hirdes v. Fanning, 40 A D 2d 716; Barnes v. Chrysler Leasing Corp., 37 A D 2d 851). Latham, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.