Wood v Dolloff

2008 NY Slip Op 05125

Decided on June 6, 2008

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2008


PRESENT: MARTOCHE, J.P., CENTRA, LUNN, PERADOTTO, AND GREEN, JJ.
550 CA 07-02519




Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered January 11, 2007 in a personal injury action. The order denied the motion of defendants for summary judgment dismissing the complaint.


EUSTACE & MARQUEZ, WHITE PLAINS (HEATH A. BENDER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiffs commenced this personal injury action in March 2004, and plaintiff Linda M. Wood died in June 2004. Upon her death, Supreme Court was divested " of jurisdiction to conduct proceedings in [the] action until a proper substitution [was] made pursuant to CPLR 1015 (a)' " (Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069, quoting Noriega v Presbyterian Hosp. in City of N.Y., 305 AD2d 220, 221), and the record is devoid of any evidence that plaintiffs' attorney obtained, or indeed sought, the requisite substitution. Thus, we lack jurisdiction to review the order on appeal, inasmuch as the order is a nullity (see Singer v Riskin, 32 AD3d 839).
Entered: June 6, 2008
JoAnn M. Wahl
Clerk of the Court