Wilson v. Rosen

Appellate Division of the Supreme Court of New York

Wilson v. Rosen

166 A.D.2d 441, 561 N.Y.S.2d 144, 1990 N.Y. App. Div. LEXIS 11749

Appellate Division of the Supreme Court of the State of New York·Decided October 1, 1990·Published·Cited by 2 cases

Opinion

In an action to recover damages for medical malpractice, etc., the defendant Neurological Associates of Stony Brook, P. C., appeals from so much of an order of the Supreme Court, Suffolk County (Copertino, J.), entered December 28, 1988, as denied its motion to dismiss the complaint insofar as it is asserted against it for want of prosecution.

Ordered that the appeal is dismissed, with costs.

The original plaintiff Karen Ann Wilson died prior to the issuance of the order denying the appellant’s motion to dismiss the complaint insofar as it is asserted against it for want of prosecution. There was no effective substitution made prior to the issuance of that order as required by CPLR 1015. Thus, the provision of the order appealed from is a nullity and this court has no jurisdiction to entertain the appeal (see, Cooper v Volk, 157 AD2d 766; Homemakers Inc. v Williams, 131 AD2d 636; Weber v Bellinger, 124 AD2d 1009). Mangano, P. J., Kunzeman, Kooper, Sullivan and Ritter, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for medical malpractice, etc., the defendant Neurological Associates of Stony Brook, P. C., appeals from so much of an order of the Supreme Court, Suffolk County (Copertino, J.), entered December 28, 1988, as denied its motion to dismiss the complaint insofar as it is asserted against it for want of prosecution.

Ordered that the appeal is dismissed, with costs.

The original plaintiff Karen Ann Wilson died prior to the issuance of the order denying the appellant’s motion to dismiss the complaint insofar as it is asserted against it for want of prosecution. There was no effective substitution made prior to the issuance of that order as required by CPLR 1015. Thus, the provision of the order appealed from is a nullity and this court has no jurisdiction to entertain the appeal (see, Cooper v Volk, 157 AD2d 766; Homemakers Inc. v Williams, 131 AD2d 636; Weber v Bellinger, 124 AD2d 1009). Mangano, P. J., Kunzeman, Kooper, Sullivan and Ritter, JJ., concur.

Wilson v. Rosen, 166 A.D.2d 441, 561 N.Y.S.2d 144, 1990 N.Y. App. Div. LEXIS 11749 (N.Y. Ct. App. 1990).

Pincite

166 A.D.2d 441 (Wilson v. Rosen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related