| Stancu v Cheon Hyang Oh |
| 2010 NY Slip Op 05754 [74 AD3d 1322] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Ionel Stancu et al., Appellants, v Cheon Hyang Oh et al.,Respondents. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Queens County (Schulman, J.), dated April 23, 2009, which denied theirmotion, inter alia, to vacate the stay of the action imposed pursuant to CPLR 1015 as aconsequence of the death of the defendant Chung-Kun Oh, to the extent of allowing them toconduct discovery to obtain information necessary to appoint an administrator of the estate ofthat defendant in the State of New Jersey.
Ordered that the order is affirmed, with costs.
This action was commenced by the plaintiffs to recover damages for personal injuriesallegedly sustained on October 20, 1998, as the result of a motor vehicle accident that occurredin Queens, involving a car operated by the defendant Chung-Kun Oh (hereinafter the decedent),who died on September 15, 2001. At the time of his death, the decedent was a resident of theState of New Jersey.
On February 28, 2005 the Supreme Court marked this action "stayed" due to the decedent'sdeath. On several occasions, in response to motions by the plaintiffs, the Supreme Court directedthe plaintiffs to proceed in the "Surrogate's Court of [the] appropriate jurisdiction to appoint anestate representative" for the decedent. Instead of complying with that directive, the plaintiffsagain initiated motion practice in the Supreme Court, claiming, without any supporting detail,inter alia, that they "attempted to secure New Jersey counsel" to pursue appointment ofrepresentative of the decedent's estate, but have "been unable to find an attorney willing tohandle the matter."
The death of a party divests the court of jurisdiction to conduct proceedings in an action, theaction is stayed as to him or her pending substitution of a legal representative, and anydetermination rendered without such a substitution is generally deemed a nullity (seeCPLR 1015, 1021; Reed v Grossi, 59 AD3d 509, 511 [2009]; Rumola v MaimonidesMed. Ctr., 37 AD3d 696, 696-697 [2007]; Lugo v GE Capital Auto Lease, 36 AD3d409, 410 [2007]; Singer v Riskin, 32 AD3d 839, 839-840 [2006]; Giroux v DunlopTire Corp., 16 AD3d 1068, 1069 [2005]; Hicks v Jeffrey, 304 AD2d 618 [2003];Faraone v National Academy of Tel. Arts & Sciences, 296 AD2d 349, 350 [2002];Gonzalez v Ford Motor Co., 295 AD2d 474, 475 [2002]).[*2]
Here, the plaintiffs provided no reason why discoverywas required. Accordingly, under the circumstances of this case, the Supreme Court properlydenied the plaintiffs' motion, inter alia, to vacate the stay of the action imposed pursuant toCPLR 1015 as a consequence of the decedent's death to the extent of allowing them to conductdiscovery to obtain information necessary to appoint an administrator of the decedent's estate inthe State of New Jersey.
The plaintiffs' remaining contentions are without merit. Dillon, J.P., Miller, Eng andChambers, JJ., concur.