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Anderson v. Gilliland

Appellate Division of the Supreme Court of New York, Third Department
Dec 4, 1997
245 A.D.2d 654 (N.Y. App. Div. 1997)

Opinion

December 4, 1997

Appeal from the Supreme Court (Donohue, J.).


In September 1988, plaintiff was injured in an automobile accident when the vehicle in which she was a passenger was struck from behind by defendant's vehicle. In September 1991, she commenced this personal injury action against defendant.

Scheduled for trial in May 1994, an adjournment was granted due to the unavailability of a witness. Plaintiff agreed to strike her note of issue and Supreme Court, in turn, removed the case from the trial calendar. In April 1995, the case was scheduled for a calendar call at which time Supreme Court directed plaintiff's attorney to refile the note of issue if the matter could not be settled. Nothing further transpired until February 1996 when plaintiff moved to have her case restored to the trial calendar. Plaintiff died on March 22, 1996, three days after the return date on the motion. Supreme Court denied the motion and this appeal ensued.

We note that after plaintiff's death, numerous documents were filed with the court, including an affidavit of Michael Anderson, decedent's son who was appointed coadministrator for her estate, as well as an affidavit of decedent's counsel in further support of the motion. However, no motion for substitution was made by the coadministrators (see, CPLR 1015, 1021). Accordingly, "[n]otwithstanding [the court's] legitimate interest in bringing the action to conclusion" (Brown v. Konczeski, 242 A.D.2d 847), the order made by Supreme Court between plaintiff's death and the substitution of a qualified personal representative is a nullity since, upon the death of a party, all proceedings are automatically stayed (see, Alexander, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C1021:2, at 238). Having no jurisdiction to hear and determine this appeal (see, Pavone v. Walters, 214 A.D.2d 1052; Forth v. McQuire, 193 A.D.2d 1146), we must dismiss it.

Crew III, J. P., Yesawich Jr., Spain and Carpinello, JJ., concur.

Ordered that the appeal is dismissed, without costs.


Summaries of

Anderson v. Gilliland

Appellate Division of the Supreme Court of New York, Third Department
Dec 4, 1997
245 A.D.2d 654 (N.Y. App. Div. 1997)
Case details for

Anderson v. Gilliland

Case Details

Full title:JANE ANDERSON, Appellant, v. JAMES V. GILLILAND, JR., Respondent

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

Date published: Dec 4, 1997

Citations

245 A.D.2d 654 (N.Y. App. Div. 1997)
665 N.Y.S.2d 126

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