Opinion
CA 06-00149.
September 22, 2006.
Appeal from an order of the Surrogate's Court, Erie County (Barbara Howe, S.), entered February 2, 2005. The order, among other things, granted petitioner's motion for summary judgment.
MC GRATH POLVINO, PLLC, WILLIAMSVILLE (DONALD G. MC GRATH OF COUNSEL), FOR RESPONDENT-APPELLANT.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PETITIONER-RESPONDENT.
Present — Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Green, JJ.
It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.
Memorandum: On February 1, 2005, Surrogate's Court, inter alia, granted petitioner's motion for summary judgment. However, Mary H. Tuppen, executor of respondent estate of Charles D. Tuppen, Jr., had died on an undisclosed date, her successor executor having been appointed on December 20, 2004. The successor executor has not been substituted as a respondent in this proceeding, and thus the Surrogate "lacked jurisdiction to rule on the motion and the order . . . is a nullity" ( Schraven v Town of Tonawanda, 238 AD2d 952, 952; see Kelly v Methodist Hosp., 276 AD2d 672, 672-673; Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819, 820). "In addition, this Court has no jurisdiction to entertain the instant appeal" ( Schraven, 238 AD2d at 952; see Kelly, 276 AD2d at 673; Pavone v Walters, 214 AD2d 1052). This dismissal does not preclude an application to have the successor executor substituted as a respondent, nor does it preclude a new motion for summary judgment ( see Weber v Bellinger, 124 AD2d 1009; Silvagnoli, 112 AD2d at 821).