Schraven v. Town of Tonawanda

238 A.D.2d 952, 661 N.Y.S.2d 169, 1997 N.Y. App. Div. LEXIS 4811

Opinion

—Order unanimously vacated and appeal dismissed without costs. Memorandum: Following the commencement of this personal injury action, plaintiff died. No substitution of a legal representative was made pursuant to CPLR 1015 (a) before defendant moved for summary judgment. As a result, Supreme Court lacked jurisdiction to rule on the motion and the order granting it is a nullity (see, Weber v Bellinger, 124 AD2d 1009; Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819, 820). In addition, this Court has no jurisdiction to entertain the instant appeal (see, Catalfamo v Flushing Natl. Bank, 124 AD2d 624, 625; Muth v Benjamin, 109 AD2d 736). (Appeal from Order of Supreme Court, Erie County, Whelan, J.—Summary Judgment.) Present—Green, J. P., Pine, Lawton, Doerr and Fallon, JJ.