Klaus v Schepps

2005 NYSlipOp 01504

February 28, 2005

Appellate Division, Second Department

As corrected through Wednesday, April 20, 2005

Howard Klaus, Appellant, v Herbert Schepps, Respondent.

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In an action, inter alia, for an accounting and to appoint a receiver for certain real property, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Barasch, J.), dated December 18, 2003, which denied his motion for an appointment of a receiver and granted the defendant's cross motion for summary judgment dismissing the complaint and (2), as limited by his brief, from so much of an order of the same court dated March 10, 2004, as, upon renewal, adhered to its prior determination.

Ordered that the appeals are dismissed, without costs or disbursements, and the orders dated December 18, 2003, and March 10, 2004, respectively, are vacated and declared to be nullities.

The defendant died on November 21, 2002, and no substitution has been made. Accordingly, the orders appealed from are nullities and the appeals must be dismissed (see CPLR 1015, 1021; Temple v Rosa, 215 AD2d 550 [1995]; Oberlander v Levi, 207 AD2d 437 [1994]). Goldstein, J.P., Luciano, Crane and Spolzino, JJ., concur.