Timoner v. North Shore Internal Medicine Associates, P. C.

125 A.D.2d 300, 508 N.Y.S.2d 585, 1986 N.Y. App. Div. LEXIS 62562

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1986
• Status: Published

Opinion

— In a medical malpractice action, the appeal is from an order of the Supreme Court, Nassau County (Morrison, J.), entered March 25, 1985, which granted that branch of the defendants’ motion which was to dismiss the cause of action asserted on behalf of Monte Timoner, pursuant to CPLR 1021.

Ordered that the appeal is dismissed, without costs or disbursements.

The plaintiff Monte Timoner died in May 1982, during the pendency of this action. More than two years after his death no personal representative had been appointed. The defendants moved to dismiss the action pursuant to CPLR 1021 for failure to effect a substitution of the personal representative of Monte Timoner’s estate within a reasonable time. Special Term granted the motion to the extent of dismissing the cause of action asserted by the deceased plaintiff Monte Timoner. Both plaintiffs purport to appeal from that order. Since there has been no appointment of a personal representative (EPTL 1-2.13) and no substitution (CPLR 1015), this court has no jurisdiction to hear and determine the appeal on behalf of the deceased plaintiff (see, Muth v Benjamin, 109 AD2d 736; Paul v Ascher, 106 AD2d 619). Insofar as the plaintiff Ellen Timoner seeks to appeal from the order, Special Term severed her cause of action and continued it. Therefore she is not an aggrieved party (CPLR 5511). Thompson, J. P., Niehoff, Rubin and Eiber, JJ., concur.