Nunez v. Goodman

Appellate Division of the Supreme Court of New York

Nunez v. Goodman

264 A.D.2d 651, 695 N.Y.S.2d 559, 1999 N.Y. App. Div. LEXIS 9489

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

DecidedSeptember 28, 1999

StatusPublished

Cited by2 cases

This text of 264 A.D.2d 651 (Nunez v. Goodman) 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

Nunez v. Goodman, 264 A.D.2d 651, 695 N.Y.S.2d 559, 1999 N.Y. App. Div. LEXIS 9489 (N.Y. Ct. App. 1999).

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Opinion

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about June 30, 1998, which denied defendants’ motion to substitute as a defendant the deceased defendant’s executrix, and denied plaintiffs’ cross motion to restore the action to the calendar with leave to renew upon proper papers that include an affidavit of merit, unanimously reversed, on the law, without costs, the motion and cross motion granted, and the action restored.

The death of the defendant Elliott Goodman in April 1995 divested the IAS Court of jurisdiction to dismiss the action one year later while substitution of a legal representative for the deceased defendant was pending. Therefore, the order of dis[652]*652missal of the action is void (Harding v Noble Taxi Corp., 155 AD2d 265; Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819).

Inasmuch as the executrix now seeks substitution, her motion should be granted and the action restored to active status. Concur — Ellerin, P. J., Tom, Mazzarelli, Wallach and Lerner, JJ.

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Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about June 30, 1998, which denied defendants’ motion to substitute as a defendant the deceased defendant’s executrix, and denied plaintiffs’ cross motion to restore the action to the calendar with leave to renew upon proper papers that include an affidavit of merit, unanimously reversed, on the law, without costs, the motion and cross motion granted, and the action restored.

The death of the defendant Elliott Goodman in April 1995 divested the IAS Court of jurisdiction to dismiss the action one year later while substitution of a legal representative for the deceased defendant was pending. Therefore, the order of dis[652]*652missal of the action is void (Harding v Noble Taxi Corp., 155 AD2d 265; Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819).

Inasmuch as the executrix now seeks substitution, her motion should be granted and the action restored to active status. Concur — Ellerin, P. J., Tom, Mazzarelli, Wallach and Lerner, JJ.

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Bluebook (online)

264 A.D.2d 651, 695 N.Y.S.2d 559, 1999 N.Y. App. Div. LEXIS 9489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunez-v-goodman-nyappdiv-1999.

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