Wood v. Dolloff

Appellate Division of the Supreme Court of New York

Wood v. Dolloff

52 A.D.3d 1190, 859 N.Y.S.2d 820

Appellate Division of the Supreme Court of the State of New York·Decided June 6, 2008·Published·Cited by 5 cases

Opinion

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered January 11, 2007 in a personal injury action. The order denied the motion of defendants for summary judgment dismissing the complaint.

It is hereby ordered that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiffs commenced this personal injury action in March 2004, and plaintiff Linda M. Wood died in June 2004. Upon her death, Supreme Court was divested “ ‘ “of jurisdiction to conduct proceedings in [the] action until a proper substitution [was] made pursuant to CPLR 1015 (a)” ’ ” (Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069 [2005], quoting Noriega v Presbyterian Hosp. in City of N.Y., 305 AD2d 220, 221 [2003]), and the record is devoid of any evidence that plaintiffs’ attorney obtained, or indeed sought, the requisite substitution. Thus, we lack jurisdiction to review the order on appeal, inasmuch as the order is a nullity (see Singer v Riskin, 32 AD3d 839 [2006]). Present—Martoche, J.P, Centra, Lunn, Peradotto and Green, JJ.

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Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered January 11, 2007 in a personal injury action. The order denied the motion of defendants for summary judgment dismissing the complaint.

It is hereby ordered that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiffs commenced this personal injury action in March 2004, and plaintiff Linda M. Wood died in June 2004. Upon her death, Supreme Court was divested “ ‘ “of jurisdiction to conduct proceedings in [the] action until a proper substitution [was] made pursuant to CPLR 1015 (a)” ’ ” (Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069 [2005], quoting Noriega v Presbyterian Hosp. in City of N.Y., 305 AD2d 220, 221 [2003]), and the record is devoid of any evidence that plaintiffs’ attorney obtained, or indeed sought, the requisite substitution. Thus, we lack jurisdiction to review the order on appeal, inasmuch as the order is a nullity (see Singer v Riskin, 32 AD3d 839 [2006]). Present—Martoche, J.P, Centra, Lunn, Peradotto and Green, JJ.

Wood v. Dolloff, 52 A.D.3d 1190, 859 N.Y.S.2d 820 (N.Y. Ct. App. 2008).

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