Hemphill v. Rock
| Decision Date | 12 April 1982 |
| Citation | 449 N.Y.S.2d 267,87 A.D.2d 836 |
| Parties | Alfred HEMPHILL, Appellant, v. Henry ROCK et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Lawrence M. Rosenberg and Herbert M. Horowitz, New York City (Seymour Armstrong, New York City, of counsel), for appellant.
Mendes & Mount, New York City (Faruolo, Caputi & Weintraub, Gary N. Weintraub and Frank J. Faruolo, Jr., Huntington, of counsel), for respondent Rock.
Mebel & Sessa, Brooklyn (Robert E. Mebel, Brooklyn, of counsel), for respondents Horn, Leibert and Shechter.
Before DAMIANI, J. P., and GIBBONS, O'CONNOR and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages predicated upon the alleged malpractice of the defendant podiatrists, plaintiff purportedly appeals from two orders of the Supreme Court, Kings County, dated February 2, 1981 and May 4, 1981, which, respectively, (1) denied plaintiff's purported motion to amend the title of the action and granted defendants' cross motion to dismiss the action for failure to timely substitute as plaintiff the administrator of plaintiff's estate, and (2) denied plaintiff's purported motion for reargument.
Purported appeals dismissed, without costs or disbursements.
The alleged malpractice giving rise to this litigation occurred in 1971; the action was commenced in 1972 and plaintiff died in 1976. In March, 1977 an administrator was appointed for plaintiff's estate. Adjournments of depositions were consented to through April, 1978 by plaintiff's purported attorney of record. By motion returnable December 22, 1980 purported trial counsel moved on plaintiff's behalf to substitute the administrator as plaintiff; however, there is neither allegation nor proof in the record to indicate by what authority these attorneys acted in moving at Special Term and arguing before this court. The record is equally silent about the cause of, or an excuse for, the tardiness with which these steps were taken by plaintiff's purported attorneys, and about the putative merits of the causes of action (see Meier v. Shively, 10 A.D.2d 566, 195 N.Y.S.2d 509).
Upon plaintiff's death his attorneys' authority to act on his behalf terminated (see Hart v. Blabey, 286 N.Y. 75, 35 N.E.2d 657; cf. Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647). Nor can this court exercise jurisdiction over a dead party (see Tracy v. Ludwig, 44 A.D.2d 832, 355 N.Y.S.2d 160; Arena v. Manganello, 31 A.D.2d 540, 295 N.Y.S.2d 170; Sowells v....
To continue reading
Request your trial
-
Aurora Bank FSB v. Albright
...438, 438, 761 N.Y.S.2d 306; Timoner v. North Shore Internal Medicine Assoc., 125 A.D.2d 300, 301, 508 N.Y.S.2d 585; Hemphill v. Rock, 87 A.D.2d 836, 836, 449 N.Y.S.2d 267). Furthermore, since no substitution was made prior to the entry of the order appealed from, the order appealed from is ......
-
Kondylis v. Alatis Interiors Co.
...be waived ( see Bauernfeind v. Albany Med. Ctr. Hosp., 154 A.D.2d 754, 755 n. 1, 546 N.Y.S.2d 201 [1989];compare Hemphill v. Rock, 87 A.D.2d 836, 836–837, 449 N.Y.S.2d 267 [1982] ...
-
Waldman v. Mechanical Systems
...over a dead party, as opposed to over such a party's personal representative (see Kelly v Methodist Hosp., 276 A.D.2d 672; Hemphill v Rock, 87 A.D.2d 836; Tracy v Ludwig, 44 A.D.2d 832; Arena v Manganello, 31 A.D.2d 540; Sowells v O'Neill, 25 A.D.2d 668; Thompson v Raymond Kramer, Inc., 23 ......
-
Mansfield Contracting Corp. v. Prassas
...and granting the plaintiffs' cross motion to dismiss the defendants' counterclaims with prejudice (see, CPLR 1021; Hemphill v. Rock, 87 A.D.2d 836, 449 N.Y.S.2d 267; Dorney v. Reddy, 45 A.D.2d 754, 357 N.Y.S.2d 21; Meier v. Shively, 10 A.D.2d 566, 195 N.Y.S.2d 509; Ruderman v. Feffer, 10 A.......