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MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s failure to take timely steps to substitute a representative for a defendant who had died required the dismissal of the complaint against that defendant. A motion to dismiss made by decedent’s former attorney, purportedly on behalf of the decedent, was a nullity and should not have been granted. Motions to dismiss made by the other defendants should have been granted:

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“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party… . Although the determination of a motion pursuant to CPLR 1021 made by the successors or representatives of a party or by any party is an exception to a court’s lack of jurisdiction, here, one of the motions pursuant to CPLR 1021 was made by the former attorney for the decedent purportedly on behalf of the decedent. Since the former attorney lacked the authority to act, the Supreme Court lacked jurisdiction to consider that motion to dismiss … . Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

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Nonetheless, the Supreme Court had jurisdiction to consider the other defendants’ separate motions to dismiss pursuant to CPLR 1021 and to consider the plaintiffs’ cross motion. CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate” … . …

Here, the Supreme Court providently exercised its discretion in determining that substitution of the decedent was not made within a reasonable time. As such, the court providently exercised its discretion in denying those branches of the plaintiffs’ cross motion which were to appoint a representative for the decedent and, upon appointment, substitute the representative for the decedent as a defendant. Given that substitution was not made within a reasonable time, dismissal of the complaint as against the decedent, “the party for whom substitution should have been made” (CPLR 1021), was proper. However, contrary to the court’s determination, CPLR 1021 did not authorize dismissal of the complaint as against any of the other defendants. Vicari v Kleinwaks, 2018 NY Slip Op 00576, Second Dept 1-31-18

CIVIL PROCEDURE (SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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