Silvagnoli v. Consolidated Edison Employees Mut. Aid Soc.
| Decision Date | 01 August 1985 |
| Citation | 112 A.D.2d 819,492 N.Y.S.2d 619 |
| Parties | Esperanza SILVAGNOLI, etc. of the Estate of Louis Silvagnoli, Deceased, Plaintiff-Respondent, v. CONSOLIDATED EDISON EMPLOYEES MUTUAL AID SOCIETY, et al., Defendants-Appellants, and Safety First Products Corp., et al., Defendants. CONSOLIDATED EDISON EMPLOYEES MUTUAL AID SOCIETY, Third-Party Plaintiff, v. CONSOLIDATED EDISON OF NEW YORK, Third-Party Defendant. UNDERWRITERS LABORATORIES, INC., Third-Party Plaintiff, v. CONSOLIDATED EDISON OF NEW YORK, Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
D.J. Keenaghan, New York City, for plaintiff-respondent.
M.E. Hoffman, New York City, for defendants-appellants.
T.E. Paterson, New York City, for defendants.
Before SULLIVAN, J.P., and CARRO, FEIN, KASSAL and ROSENBERGER, JJ.
Appeal from order, Supreme Court, Bronx County entered December 6, 1984, denying defendants-appellants' motion and cross-motions to dismiss the complaint for failure to prosecute, unanimously dismissed for lack of jurisdiction to entertain the appeal, without prejudice and without costs.
Plaintiff's husband commenced this personal injury action in April, 1977. By order of Special Term, plaintiff Esperanza Silvagnoli was substituted as his legal representative when he died, and the complaint was amended to add a wrongful death claim. Issue was only joined by defendants Consolidated Edison Employees Mutual Aid Society (Mutual Aid Society), American LaFrance-Foamite Corp. and Underwriters Laboratories. Consolidated Edison of New York was impleaded, and answered the third-party complaint. Except for plaintiff's service of a bill of particulars pursuant to an order of preclusion, she did nothing to move this action. In August, 1982, Mutual Aid Society served a ninety (90) day notice demanding that plaintiff serve and file a notice of trial placing the action on the trial calendar. Plaintiff's counsel notified defendant that plaintiff had died, and that one of her surviving children would be substituted as plaintiff. Meanwhile, the other two defendants served ninety (90) day notices.
Special Term denied defendant Mutual Aid Society's motion to dismiss for failure to prosecute pursuant to CPLR 3216, with leave to renew, on condition that substitution be made within thirty (30) days of service of a copy of the court's order, and that the matter be placed on the trial calendar within sixty (60) days thereafter.
Plaintiff's counsel placed the case on the trial calendar, yet failed to obtain an order of substitution. By notice of motion dated July 24, 1984, Mutual Aid Society renewed its motion to dismiss, and was joined by Underwriters Laboratories. American LaFrance-Foamite Corp., moved for the same relief. By order entered December 6, 1984, Special Term denied defendants' motions, and they appealed.
The death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a). Matter of Einstoss, 26 N.Y.2d 181, 189-90, 309 N.Y.S.2d 184, 257 N.E.2d 637 (1970), Wisdom v. Wisdom, App.Div., 488 N.Y.S.2d 682 (1st Dept., 1985). As the court stated in Matter of Einstoss, supra: "If a party dies before a verdict or decision is rendered in an action, it abates as to him.... unless it is revived by substituting his personal representative." Any order made between the death of a party and the substitution of a legal representative is void. Wisdom v. Wisdom, supra. Thompson v. Kramer, Inc., 23 A.D.2d 746, 747, 258 N.Y.S.2d 671 (1st Dept., 1965).
This court lacks jurisdiction to entertain defendants' appeal. Special Term had no jurisdiction to rule upon defendants' motions to dismiss for failure to prosecute in the first instance, and its order was a nullity. Dorney v. Reddy, 45 A.D.2d 754, 755, 357 N.Y.S.2d 21 (2d Dept., 1974).
Plaintiff's purported counsel opposed dismissal at Special Term on the grounds that the attorney of record, a member of his firm, had been recently hospitalized, and averred that an application for appointment of one of plaintiff's surviving children was pending in the Surrogate's Court...
To continue reading
Request your trial
-
Perez v. City of N.Y.
...deemed a nullity” ( Hicks v. Jeffrey, 304 A.D.2d 618, 618, 757 N.Y.S.2d 474 [2003];see also Silvagnoli v. Consolidated Edison Empls. Mut. Aid Socy., 112 A.D.2d 819, 820, 492 N.Y.S.2d 619 [1985];seeCPLR 1015). Although the 90–day notice was issued after Velez died, neither the other parties ......
-
Williams v. Way
...Dr. Montgomery's death (see, Matter of Einstoss, 26 N.Y.2d 181; Kelly v. Methodist Hosp., 276 A.D.2d 672; Silvagnoli v. Consolidated Edison Employee Mut. Aid Socy., 112 A.D.2d 819). Therefore, the Supreme Court erred in imposing a sanction on the plaintiff for violating that order as to Dr.......
-
Blank v. Schafrann, 1
...special circumstances, resulting in a waiver of the CPLR 1021 jurisdictional issue (cf., Silvagnoli v. Consolidated Edison Empls. Mut. Aid Socy., 112 A.D.2d 819, 820, 492 N.Y.S.2d 619). Accordingly, the orders denying plaintiff's motions to vacate the default judgments in action Nos. 1 and ......
-
Brogan v. Mary Immaculate Hosp. Div. of Catholic Medical Center of Brooklyn & Queens, Inc.
...309 N.Y.S.2d 184, 257 N.E.2d 637; Bossert v. Ford Motor Co., 140 A.D.2d 480, 528 N.Y.S.2d 592; Silvagnoli v. Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819, 492 N.Y.S.2d 619; cf., Nieves v. 331 E. 109th St. Corp., 112 A.D.2d 59, 491 N.Y.S.2d 350). Accordingly, the Supreme Cour......