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DEFENDANT’S DEATH PRIOR TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY.

In this foreclosure action, the Second Department determined plaintiff bank's motion for summary judgment should not have been entertained because defendant had died before the motion was brought. The order appealed from was therefore a nullity:

Here, the deceased defendant died before the plaintiff's motion was made and before the order appealed from was issued. The attorney who had represented the deceased defendant prior to his death purportedly took this appeal on behalf of, among others, the deceased defendant. However, since a substitution of parties had not been effected prior to the filing of the notice of appeal, counsel lacked the authority to act for the deceased defendant, and the purported appeal taken on behalf of the deceased defendant must be dismissed … . Furthermore, since no substitution was made prior to the entry of the order appealed from, the order appealed from is a nullity to the extent that it pertains to the deceased defendant, and we vacate so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the deceased defendant … .

Similarly, in this case, since a proper substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff's motion, even to the extent that the plaintiff sought relief against the other defendants … . Aurora Bank FSB v Albright, 2016 NY Slip Op 02307, 2nd Dept 3-30-16

CIVIL PROCEDURE (DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/JURISDICTION (DEATH, DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/TRUSTS AND ESTATES (DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/APPEALS (DEATH, DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)

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IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY... JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED.