Nieves on Behalf of Nieves v. 331 East 109th Street Corp.
| Decision Date | 02 July 1985 |
| Parties | , 112 A.D.2d 825 Angel Luis NIEVES, etc., and on Behalf of deceased wife Cecilia NIEVES, Plaintiff-Respondent, v. 331 EAST 109TH STREET CORP., et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
K.E. Wile, New York City, for plaintiff-respondent.
L.A. Marks, New York City, for defendants-appellants.
Before KUPFERMAN, J.P., and ROSS, BLOOM, KASSAL and ROSENBERGER, JJ.
Judgment, Supreme Court, New York County, entered April 10, 1984, which awarded plaintiffs $24,534.50 on a jury verdict, unanimously modified, on the law, without costs, to the extent of striking the award of treble damages, and otherwise affirmed. The orders (same court, Robert White, J.) entered April 17 and May 29, 1984, which (1) denied defendants' motions to vacate their default, (2) denied their motion to renew, and (3) granted the cross-motion to substitute Angel Luis Nieves as personal representative, nunc pro tunc, of the deceased plaintiff, Cecilia Nieves, are unanimously affirmed, without costs.
Defendant 331 East 10th Street Corp. owns and manages an apartment building located at that address. Defendant Frank Mastropaolo is its employee and managing agent. Plaintiffs Angel Nieves and his wife Cecilia brought this action against defendants for wrongful eviction and seek to recover compensatory damages for loss of personal property and extreme mental and emotional distress, and treble damages pursuant to former RPAPL 853 (L.1962, c. 142).
Cecilia Nieves died on June 15, 1982. The note of issue was filed on July 20, 1982. When defendants' attorney twice failed to appear for scheduled pre-trial conferences, the court referred the matter for an inquest. Plaintiffs moved for entry of a default judgment, disclosing in their moving papers that Mrs. Nieves' was deceased. The motion was granted without opposition.
Thereafter, the inquest was held, the jury returning a verdict for plaintiffs in the amount of $7,000 ($2,000 for loss of property and its use, $5,000 for mental and emotional distress and treble damages) resulting in a judgment for $24,534.50, including interests and costs.
Defendants then moved to vacate the default judgment, alleging that their attorney had been incapacitated, requiring stay of the action under CPLR 321(c). Following denial of the motion, defendants sought leave to renew alleging that plaintiffs had not substituted a personal representative for the decedent, and the cause of action did not result from assault or forceful ejectment as required under former RPAPL 853 (L.1962, c. 142). Plaintiffs cross-moved to substitute Angel Nieves as personal representative nunc pro tunc, pursuant to CPLR Sec 1015(a). Following denial of the motion and the granting of the cross-motion, defendants appealed.
It is well-settled that the death of a party divests the court of jurisdiction to render a judgment until a proper substitution has been made, so that any step taken without it may be deemed void, including an appellate decision. Matter of Einstoss, 26 N.Y.2d 181, 189-90, 309 N.Y.S.2d 184, 257 N.E.2d 637 (1970); Thompson v. Kramer, Inc., 23 A.D.2d 746, 747, 258 N.Y.S.2d 671 (1st Dept., 1965). However, under the circumstances of this case, where the decedent's co-plaintiff is the surviving spouse, with a clear identity of interest, we find the lack of a personal representative to be an omission which may be remedied retroactively. Under these circumstances the decedent's unique interests are not jeopardized in the absence of a personal representative. Compare Wisdom v Wisdom, App.Div., 488 N.Y.S.2d 682 (1st Dept., 1985). The identity of interest in the litigation assures that the co-plaintiff surviving spouse will vigorously protect the decedent's claim until formal substitution is made.
Therefore, the substitution nunc pro tunc was a proper and valid exercise of the court's discretion. There was an actual substitution by virtue of Angel Nieves' active pursuit of their claims. Since defendants proceeded to the inquest with full knowledge of Mrs. Nieves' death, their rights are not prejudiced by validating the prior proceedings. Kucher v. Kucher, 60 A.D.2d 644, 645, 400 N.Y.S.2d 549 (2d Dept., 1977). Cf. Carel Almo Service, Inc. v. Weisskopf, 58 A.D.2d 550, 551, 396 N.Y.S.2d 16 (1st Dept., 1977). Defendants moreover waived any objection to the validity of the...
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