Opinion
August 11, 1997
Appeal from the Supreme Court, Kings County (Belen, J.).
Ordered that the order is modified by deleting the first decretal paragraph thereof, and substituting therefor provisions (1) denying the motion and cross motion, and (2) on the court's own motion, directing the plaintiff to apply for the appointment of an administrator for the deceased defendant Robinson Washington, Jr., and, upon said appointment, to apply for substitution of the administrator as a party defendant in the place and stead of the deceased defendant Robinson Washington, Jr.; as so modified, the order is affirmed, without costs or disbursements, and the plaintiff's time to move for the appointment of an administrator is enlarged until 45 days after the date of this decision and order; in the event that the plaintiff shall have neglected or failed to move for the appointment of an administrator as aforesaid, the complaint insofar as it is asserted against the deceased defendant Robinson Washington, Jr., is dismissed, without prejudice.
On April 10, 1992, while the present action was pending, the defendant Robinson Washington, Jr., died. By letter dated May 6, 1992, the attorney for Washington, who also represented the defendant Ryder Truck Rental, Inc. (hereinafter Ryder), informed the plaintiff's attorney that Washington had died and that he would not seek to have a personal representative appointed for Washington.
More than 2 1/2 years later, no legal representative had been substituted for Washington. On December 7, 1994, the attorney for Ryder, purportedly also acting on behalf of Washington, served the plaintiff with a 90-day notice demanding that he serve and file a note of issue. Thereafter, in June 1995 the attorney for Ryder, again purportedly also acting on behalf of Washington, moved, and the defendant Shnayer Klein cross-moved, to dismiss the action based on the plaintiff's failure to prosecute by not having sought substitution of a legal representative for Washington and not having complied with the discovery schedule imposed by a preliminary conference order issued by the court on October 28, 1991.
It is well settled that the death of a party terminates his attorney's authority to act and stays the action as to him pending the substitution of a legal representative ( see, CPLR 1015; Matter of Einstoss, 26 N.Y.2d 181; Brogan v. Mary Immaculate Hosp., 209 A.D.2d 663) and any determination rendered without such substitution is generally deemed a nullity ( see, Oberlander v. Levi, 207 A.D.2d 437). Pursuant to CPLR 1015 (a), which provides "[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties", the plaintiff is directed to apply for the appointment of an administrator for Washington, and upon said appointment, to apply for substitution of the administrator as a party defendant.
Joy, J.P., Altman, Friedmann and Krausman, JJ., concur.