From Casetext: Smarter Legal Research

Arena v. Manganello

Appellate Division of the Supreme Court of New York, Second Department
Nov 12, 1968
31 A.D.2d 540 (N.Y. App. Div. 1968)

Opinion

November 12, 1968


Appeal by defendants from an order of the Supreme Court, Nassau County, dated February 19, 1968, which denied their motion to dismiss the complaint on the ground that it fails to state a cause of action. Appeal dismissed insofar as it purports to be by defendants Prezzano and Gentile, without costs. Order affirmed insofar as it affects the remaining defendants, with $10 costs and disbursements against said defendants. The time within which said remaining defendants may answer the complaint is extended until 20 days after entry of the order hereon. It appears that prior to the making of the motion presently under review defendant Prezzano died and that after the order appealed from was made, but prior to the taking of the appeal, defendant Gentile died. There has been no substitution for either of these two defendants. Hence the notice of appeal, insofar as it purports to be by them, is void and cannot bring the purported appeal by them before this court; and Special Term lacked jurisdiction to pass on the motion insofar as it was purportedly made by Prezzano ( Warren v. Cole, 29 A.D.2d 988; Chimenti v. Hertz Corp., 25 A.D.2d 562; Matter of Huberman v. O'Connell, 282 App. Div. 762). Beldock, P.J., Christ, Rabin, Hopkins and Benjamin, JJ., concur.


Summaries of

Arena v. Manganello

Appellate Division of the Supreme Court of New York, Second Department
Nov 12, 1968
31 A.D.2d 540 (N.Y. App. Div. 1968)
Case details for

Arena v. Manganello

Case Details

Full title:FRANK ARENA et al., Respondents, v. FILOMENA MANGANELLO, as Executrix of…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 12, 1968

Citations

31 A.D.2d 540 (N.Y. App. Div. 1968)

Citing Cases

Wisdom v. Wisdom

Thus, in Chimenti v. Hertz Corp. ( 25 A.D.2d 562) it was held that "the notice of appeal * * * is void" and…

Waldman v. Mechanical Systems, Inc.

" In a reply affirmation submitted in the Supreme Court, and in the notice of appeal served in connection…