| Paterno v CYC, LLC |
| 2007 NY Slip Op 10127 [46 AD3d 788] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Carol L. Paterno, Respondent, v CYC, LLC, et al.,Defendants, and Chazen Engineering & Land Surveying Co. et al.,Appellants. |
—[*1] Daniels and Porco, LLP, Pawling, N.Y. (Michael G. Hayes and Michele N. Hayes ofcounsel), for respondent.
In an action, inter alia, to recover damages for injury to property, the defendants ChazenEngineering & Land Surveying Co., Chazen Environmental Services, Inc., and EnviroplanAssociates, Inc., appeal from an order of the Supreme Court, Dutchess County (Sproat, J.),entered June 21, 2006, which denied their motion for summary judgment dismissing the sixthand tenth causes of action insofar as asserted against them.
Ordered that the order is affirmed, with costs.
This action was commenced by Michael J. Paterno and Carol L. Paterno. On July 9, 2005,during the pendency of this action, Michael J. Paterno died. On July 29, 2005 the plaintiff CarolL. Paterno (hereinafter the plaintiff) filed a note of issue. The plaintiff, however, did not movepursuant to CPLR 1021 to have a personal representative substituted for Michael J. Paterno untilNovember 23, 2005. On December 20, 2005 the Supreme Court granted the motion forsubstitution. By notice of motion dated March 22, 2006, the defendants Chazen Engineering &Land Surveying Co., Chazen Environmental Services, Inc., and Enviroplan Associates, Inc.(hereinafter collectively Chazen), moved for summary judgment dismissing the sixth and tenthcauses of action insofar as asserted against them. The plaintiff opposed the motion solely on theground that it was untimely. The Supreme Court determined that the motion was timely anddenied it on the merits.[*2]
Generally, where a cause of action survives the death of aparty, such death divests the court of jurisdiction until a duly-appointed personal representative issubstituted for the deceased party (see CPLR 1015; Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069 [2005];Gonzalez v Ford Motor Co., 295 AD2d 474, 475 [2002]; Kelly v Methodist Hosp.,276 AD2d 672, 673 [2000]). However, where a party's demise does not affect the merits ofthe case, there is no need for strict adherence to the requirement that the proceedings be stayedpending substitution (see AlaskaSeaboard Partners Ltd. Partnership v Grant, 20 AD3d 436, 437 [2005]; Bova vVinciguerra, 139 AD2d 797, 799 [1988]). Here, the death of Michael J. Paterno did notaffect the merits of the case as his wife was the only other plaintiff, and had a clear identity ofinterest with her husband (see Nieves v 331 E. 109th St. Corp., 112 AD2d 59, 60[1985]). In addition, the plaintiff, as a tenant by the entirety with her husband, remained seized ofthe entire ownership interest in the subject property (see Matter of Violi, 65 NY2d 392,395 [1985]; Squiciarino v Squiciarino,35 AD3d 844, 845-846 [2006]; Dominello v Dominello, 120 AD2d 699, 700[1986]). Where, as here, the cause of action survives as to the only other plaintiff, the actionshould have proceeded without a substitution and with the decedent's death merely noted on therecord (see CPLR 1015 [b]; Bova v Vinciguerra, 139 AD2d at 797; Nieves v331 E. 109th St. Corp., 112 AD2d at 59; Matter of Heller v Rogers, 26 AD2d 640[1966]).
Since the plaintiff's filing of the note of issue on July 29, 2005, after Michael J. Paterno'sdeath, was not a nullity, Chazen's motion for summary judgment, which was not made untilMarch 22, 2006, was untimely (see CPLR 3212 [a]). Accordingly, since Chazen did notseek leave of court nor offer good cause for the delay, the Supreme Court should have denied themotion as untimely without considering the merits (see Brill v City of New York, 2 NY3d 648, 652 [2004]; Soltes v 260 Waverly Owners, Inc., 42AD3d 565, 565-566 [2007]).
Chazen's remaining contentions need not be reached in light of our determination. Miller,J.P., Goldstein, Skelos and Balkin, JJ., concur.