Opinion
2020–07578 Index No. 151365/16
11-29-2023
Titus CONSTABLE, appellant, v. STATEN ISLAND UNIVERSITY HOSPITAL, respondent.
Krenstel Guzman Herbert, LLP (Marcia K. Raicus and Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for appellant. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone of counsel), for respondent.
Krenstel Guzman Herbert, LLP (Marcia K. Raicus and Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for appellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice, the appeal is from an order of the Supreme Court, Richmond County (Orlando Marrazzo, Jr., J.), dated October 5, 2020. The order granted the defendant's motion pursuant to CPLR 1021 to dismiss the complaint.
Motion by the respondent to dismiss the appeal on the ground that the attorney who filed the notice of appeal for the deceased appellant, Titus Constable, lacked authority to act on his behalf. By decision and order on motion of this Court dated July 8, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion to dismiss the appeal is granted; and it is further,
ORDERED that the appeal is dismissed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
The plaintiff, Titus Constable, commenced this action in October 2016, inter alia, to recover damages for medical malpractice. Constable died while the action was pending, and his attorney advised the Supreme Court of the death by letter dated December 4, 2018. In June 2020, with no representative for Constable having been substituted, the defendant moved pursuant to CPLR 1021 to dismiss the complaint for failure to seek a timely substitution for the plaintiff. By order dated October 5, 2020, the court granted the defendant's motion. A notice of appeal was filed purportedly on behalf of Constable on October 6, 2020.
"The death of a party terminates the authority of the attorney for that person to act on his or her behalf" ( Hyman v. Booth Mem. Hosp., 306 A.D.2d 438, 438, 761 N.Y.S.2d 306 ; see Hart v. Blabey, 286 N.Y. 75, 35 N.E.2d 657 ). Constable died after commencement of this action and no substitution was effected. Constable's attorney purportedly took this appeal on Constable's behalf. Since counsel lacks the authority to act, the purported appeal must be dismissed (see Hart v. Blabey, 286 N.Y. at 76, 35 N.E.2d 657 ; Green v. Maimonides Med. Ctr., 172 A.D.3d 824, 825, 101 N.Y.S.3d 343 ; Aurora Bank FSB v. Albright, 137 A.D.3d 1177, 1178, 29 N.Y.S.3d 394 ).
CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur.