Bon Temps Agency, Ltd. v. Hickey

Decision Date09 March 2004
Docket Number2562.
Citation2004 NY Slip Op 01490,5 A.D.3d 157,773 N.Y.S.2d 56
PartiesBON TEMPS AGENCY, LTD., Appellant, v. RICHARD G. HICKEY, Defendant, and TERRENCE P. O'REILLY, Respondent.
CourtNew York Supreme Court — Appellate Division

This is an action to recover over $70,000 allegedly due and owing plaintiff for temporary secretarial services performed for defendant law partners Hickey and O'Reilly, both doing business as Foley Hickey Gilbert & O'Reilly. On the return date of plaintiff's motion for summary judgment, November 7, 2002, defendant O'Reilly, who had earlier submitted an affirmation in opposition to the motion, presented to the court a supplemental affirmation, simultaneously served on plaintiff's counsel, advising that defendant Hickey had died on September 28, 2002. This affirmation is not part of the record on appeal. Supreme Court disposed of the motion by marking the case off the calendar and staying the action because of the death of defendant Hickey. We reverse.

Accepting as fact the death of defendant Hickey despite the absence of any record evidence, this action may proceed against the surviving partner. While CPLR 1015 (a), provides that "[i]f a party dies and the claim . . . against him is not thereby extinguished the court shall order substitution of the proper parties," where the right sought to be enforced survives only against the surviving defendants, the action does not abate and shall proceed (CPLR 1015 [b]). Specifically, in an action against copartners, if one of them dies during the pendency of the action, the plaintiff may proceed against the surviving partner* (15A NY Jur 2d, Business Relationships § 1590; see Owen v Blumenthal, 167 Misc 213, 218 [1938], affd 254 App Div 853 [1938], revd on other grounds 280 NY 96 [1939]).

While O'Reilly concedes that if he and Hickey had been partners, the action could proceed, he denies that he, O'Reilly, was a partner of the defendant law firm. In that regard, he argues that in the affirmation submitted to the court on the return date...

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4 cases
  • Sultan v. King
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2021
    ...King, the surviving spouse and co-defendant, as represented by defense counsel. The court agrees. See Bon Temps Agency, Ltd. v. Hickey, 5 A.D.3d 157 (1st Dep't 2004); Bova v. Vinciguerra, 139 A.D.2d 797 (3rd Dep't 1988). Accordingly, the court will decide this matter on the merits. The core......
  • Sultan v. King
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2021
    ...King, the surviving spouse and co-defendant, as represented by defense counsel. The court agrees. See Bon Temps Agency, Ltd. v. Hickey, 5 A.D.3d 157 (1st Dep't 2004); Bova v. Vinciguerra, 139 A.D.2d 797 (3rd Dep't 1988). Accordingly, the court will decide this matter on the merits. The core......
  • Sultan v. King
    • United States
    • New York County Court
    • August 19, 2021
    ...King, the surviving spouse and co-defendant, as represented by defense counsel. The court agrees. See Bon Temps Agency, Ltd. v. Hickey, 5 A.D.3d 157, 773 N.Y.S.2d 56 (1st Dep't 2004) ; Bova v. Vinciguerra, 139 A.D.2d 797, 526 N.Y.S.2d 671 (3rd Dep't 1988). Accordingly, the court will decide......
  • Nares v. M & W Waterproofing, 2321.
    • United States
    • New York Supreme Court Appellate Division
    • March 9, 2004

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