Paterno v. Cyc, LLC

• Decision Date: 18 December 2007
• Docket Number: 2006-07034.
• Citation: 2007 NY Slip Op 10127,850 N.Y.S.2d 131,46 A.D.3d 788
• Parties: CAROL L. PATERNO, Respondent, v. CYC, LLC, et al., Defendants, and CHAZEN ENGINEERING & LAND SURVEYING CO. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 788

850 N.Y.S.2d 131

2007 NY Slip Op 10127

CAROL L. PATERNO, Respondent, v. CYC, LLC, et al., Defendants, and CHAZEN ENGINEERING & LAND SURVEYING CO. et al., Appellants.

2006-07034.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 18, 2007.

In an action, inter alia, to recover damages for injury to property, the defendants Chazen Engineering & Land Surveying Co., Chazen Environmental Services, Inc., and Enviroplan Associates, Inc., appeal from an order of the Supreme Court, Dutchess County (Sproat, J.), entered June 21, 2006, which denied their motion for summary judgment dismissing the sixth and tenth causes of action insofar as asserted against them.

Ordered that the order is affirmed, with costs.

This action was commenced by Michael J. Paterno and Carol L. Paterno. On July 9, 2005, during the pendency of this action, Michael J. Paterno died. On July 29, 2005 the plaintiff Carol L. Paterno (hereinafter the plaintiff) filed a note of issue. The plaintiff, however, did not move pursuant to CPLR 1021 to have a personal representative substituted for Michael J. Paterno until November 23, 2005. On December 20, 2005 the Supreme Court granted the motion for substitution. By notice of motion dated March 22, 2006, the defendants Chazen Engineering & Land Surveying Co., Chazen Environmental Services, Inc., and Enviroplan Associates, Inc. (hereinafter collectively Chazen), moved for summary judgment dismissing the sixth and tenth causes of action insofar as asserted against them. The plaintiff opposed the motion solely on the ground that it was untimely. The Supreme Court determined that the motion was timely and denied it on the merits.

Generally, where a cause of action survives the death of a party, such death divests the court of jurisdiction until a duly-appointed personal representative is substituted for the deceased party (see CPLR 1015; Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069 [2005]; Gonzalez v Ford Motor Co., 295 AD2d 474, 475 [2002]; Kelly v Methodist Hosp., 276 AD2d 672, 673 [2000]). However, where a party's demise does not affect the merits of the case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution (see Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436, 437 [2005]; Bova v Vinciguerra, 139 AD2d 797, 799 [1988]). Here, the death of Michael J. Paterno did not affect the merits of the case as his wife was the only other plaintiff, and had a clear identity of interest with her husband (see Nieves v 331 E. 109th St. Corp., 112 AD2d 59, 60 [1985]). In addition, the plaintiff, as a tenant by the entirety with her husband, remained seized of the entire ownership interest in the subject property (see Matter of Violi, 65 NY2d 392, 395 [1985]; Squiciarino v Squiciarino, 35 AD3d 844, 845-846 [2006]; Dominello v Dominello, 120 AD2d 699, 700 [1986]). Where, as here, the cause of action survives as to the only other plaintiff, the action should have proceeded without a substitution and with the decedent's death merely noted on the record (see CPLR...