| Matter of Vita V. (Cara B.) |
| 2012 NY Slip Op 08021 [100 AD3d 913] |
| November 21, 2012 |
| Appellate Division, Second Department |
| In the Matter of Vita V., an Incapacitated Person. Cara B.,Respondent; Samuel Hasanab et al., Appellants. |
—[*1] Gina-Marie Reitano, Staten Island, N.Y., for respondent.
In a guardianship proceeding in which the guardian of the person and property of Vita V., anincapacitated person, petitioned pursuant to Mental Hygiene Law § 81.43, inter alia, torecover certain property withheld from the estate of the incapacitated person, Samuel Hasanab,Yuval Golan, and Golan Developers Corp. appeal from an order of the Supreme Court,Richmond County (Aliotta, J.), dated March 15, 2011, which denied their motion to vacate ajudgment of the same court entered September 24, 2010, in favor of the petitioner and againstthem in the total sum of $229,113.32.
Ordered that the order is reversed, on the law, without costs or disbursements, and themotion to vacate the judgment entered September 24, 2010, is granted.
Cara B. was appointed as guardian of the property and person of Vita V., an incapacitatedperson. In July 2007, Cara B. petitioned to recover certain property allegedly belonging to VitaV., or the value of that property, from Samuel Hasanab, Yuval Golan, and Golan DevelopersCorp. (hereinafter collectively the appellants).
A nonjury trial was held from May 18, 2009, through May 21, 2009, and concluded on June1, 2009. Vita V. died two days later, on June 3, 2009. The trial court issued a decision datedJanuary 6, 2010, finding in favor of Cara B., as the guardian of the person and property of VitaV., and against the appellants in the amount of $200,944.32, plus interest at three per cent perannum from December 5, 2005.
Thereafter, on September 24, 2010, the Supreme Court entered a judgment in the amount of$229,113.32 against the appellants and in favor of Cara B., as guardian of the person andproperty of Vita V. The appellants moved to vacate the judgment on the basis that, among otherthings, Vita V. had died prior to the issuance of the decision upon which the judgment was based,and the proceeding should have been stayed until the personal representative of her estate wassubstituted for Cara B. In an order dated March 15, 2011, the Supreme Court denied theappellants' motion.
Pursuant to CPLR 1015 (a), "[i]f a party dies and the claim for or against him [or her] is notthereby extinguished the court shall order substitution of the proper parties." "Generally, the[*2]death of a party divests a court of jurisdiction to act, andautomatically stays proceedings in the action pending the substitution of a personal representativefor the decedent" (Neuman vNeumann, 85 AD3d 1138, 1139 [2011]; see JPMorgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713, 714[2011]; DLJ Mtge. Capital, Inc. v 44Brushy Neck, Ltd., 51 AD3d 857, 858 [2008]; Singer v Riskin, 32 AD3d 839, 839-840 [2006]).
Upon the death of an incapacitated person, the court appointing the guardian shall dischargethe guardian or modify the power of the guardian where appropriate (see Mental HygieneLaw § 81.36 [a] [3]). Thus, following Vita V.'s death, Cara B., as guardian, was withoutauthority to continue to represent the person and property of Vita V., in the absence of a furtherorder from the court which had appointed her as guardian modifying her authority to allow forthe representation of Vita V.'s estate in this proceeding (see Mental Hygiene Law §81.36 [a] [3]; see e.g. Matter of Glener, 202 AD2d 503, 503-504 [1994]). Until such amodification was issued by the court, or a representative was appointed to represent Vita V.'sestate who would have then been substituted in place of Cara B. in this proceeding, theproceeding should have been stayed pursuant to CPLR 1015 (cf. Matter of Rose BB., 262AD2d 805 [1999]).
The Supreme Court's failure to stay the proceeding pending proper substitution rendered thejudgment entered thereafter a nullity (see Commerce Commercial Leasing, LLC v PIO Enters., Inc., 78 AD3d1105, 1106 [2010]; Coverdale v Zucker, 302 AD2d 348, 348-349 [2003];Bluestein v City of New York, 280 AD2d 506, 506 [2001]).
Accordingly, the Supreme Court should have granted the appellants' motion to vacate thejudgment.
In light of our determination, the appellants' remaining contention has been renderedacademic. Angiolillo, J.P., Austin, Sgroi and Miller, JJ., concur.