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IN THIS SIDEWALK SLIP AND FALL CASE, THE DEFENDANT PROPERTY OWNERS HAD DIED AT THE TIME THE ACTION AGAINST THEM WAS COMMENCED; THAT ACTION WAS A NULLITY; THEREFORE THE MOTION TO AMEND THE COMPLAINT TO SUBSTITUTE THE EXECUTOR SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the sidewalk slip and fall action brought against defendant property owners was a nullity because the property owners had died before the suit was commenced. Because the action was a nullity, the motion to amend the complaint to substitute the executor as a party should not have been granted:

“A party may not commence a legal action or proceeding against a dead person” … . The deaths of Leon Chain and Hanka Chain (hereinafter together the decedents) prior to the commencement of this action rendered the action, insofar as asserted against them, a legal nullity from its inception. The plaintiff was instead required to commence an action against the personal representative of the decedents’ estates … . Moreover, even assuming that Ziv was the duly appointed executor of each of the decedents’ estates, the decedents were never a party to the action since they died before the commencement of the action, and the decedents’ estates could not be brought into the action by substitution or by amendment of the caption (see CPLR 1015[a]; 1021 …). The plaintiff’s attempt to amend the complaint to designate the purported executor of the decedents’ estates as a defendant in the place of the decedents was invalid and ineffective to retroactively render the action properly commenced against the decedents’ estates … . Hussain v Chain, 2023 NY Slip Op 03455, Second Dept 6-28-23

Similar issues and result in a foreclosure action: Waterfall Victoria Master Fund, Ltd. v Estate of Dennis F. Creese, 2023 NY Slip Op 03497, Second Dept 6-28-23

Practice Point: Here the defendants had died at the time the action was commenced. That action was therefore a nullity. The complaint could not be amended to substitute the executor as a party.

 

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THE BOUNDARY BETWEEN PLAINTIFFS’ AND DEFENDANTS’ PROPERTIES RUNS THROUGH A DRIVEWAY, 10 FEET ON DEFENDANTS’ PROPERTY AND SEVEN FEET ON PLAINTIFFS’ PROPERTY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DECLARING PLAINTIFFS DID NOT HAVE A PRESCRIPTIVE EASEMENT OVER THE DRIVEWAY SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT WAS REMOVED FROM THE COURTROOM WHEN HE DISRUPTED THE PROCEEDINGS AS THE GUILTY VERDICT WAS BEING DELIVERED; DEFENDANT SHOULD FIRST HAVE BEEN WARNED THAT HE WOULD BE REMOVED IF HE CONTINUED TO DISRUPT THE PROCEEDINGS; NEW TRIAL ORDERED (SECOND DEPT).
PLAINTIFF FIREFIGHTER ALLEGED DEBRIS ON STAIRS IN DEFENDANT’S HOME CAUSED HIM TO FALL WHILE FIGHTING A FIRE; THE DEBRIS DID NOT VIOLATE THE NYC ADMINISTRATIVE CODE SO THE GENERAL MUNICIPAL LAW 205-A CAUSE OF ACTION WAS PROPERLY DISMISSED; HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
HERE PLAINTIFF DID NOT FILE A NOTE OF ISSUE BY THE COURT-ORDERED DEADLINE BUT NO NINETY-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO ORDER DISMISSING THE COMPLAINT; NO EXCUSE FOR THE DELAY IS NECESSARY, THERE IS NO SPECIFIC TIME FRAME FOR A MOTION TO RESTORE, AND RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC (SECOND DEPT).
THE ONLY ACTION PLAINTIFF TOOK WITHIN A YEAR OF DEFENDANT’S DEFAULT IN THIS FORECLOSURE CASE WAS TO REQUEST A SETTLEMENT CONFERENCE; BUT A SETTLEMENT CONFERENCE IS NOT REQUIRED WHEN THE DEFENDANT DOES NOT RESIDE AT THE PROPERTY SUBJECT TO FORECLOSURE; SINCE NO ACTION WAS TAKEN TO ENTER THE DEFAULT JUDGMENT WITHIN A YEAR, THE COMPLAINT WAS DISMISSED (SECOND DEPT).
Criteria for Suspension of Judgment in Neglect Proceeding
In the Absence of Finding of Aggravating Circumstances an Order of Protection Cannot Exceed Two Years

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