Waldman v. Mechanical Systems

• Court: New York Supreme Court — Appellate Division
• Decision Date: 06 May 2002
• Docket Number: 01-05023,2
• Citation: Waldman v. Mechanical Systems (N.Y. App. Div. 2002)
• Parties: Mark Waldman, et al., respondents, v Mechanical Systems, Inc., et al., defendants; Murray Riese, et al., purported nonparty-appellants. (Index/97) 2001-05023 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Argued -

Mark Waldman, et al., respondents v Mechanical Systems, Inc., et al., defendants;

Murray Riese, et al., purported nonparty-appellants.

(Index No. 21235/97)

2001-05023

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued - April 1, 2002

Decided on May 6, 2002

Fixler & Associates, LLP, Elmsford, N.Y. (John J. Darcy and Marc Steinfeld of counsel), for purported nonparty-appellants.

Donald K. Koch, East Islip, N.Y., for respondents.

DECISION & ORDER

SANDRA J. FEUERSTEIN, J.P.

SONDRA MILLER

GABRIEL M. KRAUSMAN

BARRY A. COZIER, JJ.

In an action to recover damages for personal injuries, the nonparties Murray Riese and Irving Riese purportedly appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated March 5, 2001, as denied a motion by "the defendant, i/s/h/a Riese, Irving and Murray," to dismiss the action insofar as asserted against it on the ground that it lacks the capacity to be sued.

ORDERED that the appeal is dismissed, with costs.

The record reveals that the purported appellant Irving Riese died in 1990 and that the purported appellant Murray Riese died in 1995. In 1997, the plaintiffs allegedly commenced this action against a presumed partnership designated in the caption as "Reise [sic], Irving and Murray;" neither the estate of Irving Riese nor that of Murray Riese was named as a defendant.

Fixler & Associates, purported counsel for the deceased appellants, submitted an answer on behalf of "the defendant(s) i/s/h/a Reise, Irving and Murray." In connection with the subsequent motion to dismiss, a member of Fixler & Associates asserted "there was no such partnership as Riese, Irving and Murray." In a reply affirmation submitted in the Supreme Court, and in the notice of appeal served in connection with this appeal from the order denying the motion to dismiss, Fixler & Associates identifies its clients as Murray Riese and Irving Riese.

This court cannot exercise jurisdiction 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 A.D.2d 746; Ruderman v Feffer, 10 A.D.2d 704; Speier v St. Francis Church, 3 A.D.2d 732). The record does not demonstrate any participation in this case by the personal...