You are here: / / COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION...
, ,

COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of a defendant in this foreclosure action precluded the court from hearing and determining plaintiff’s motion for summary judgment, even with respect to the other defendants:

As a general matter, “the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for that decedent pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution will generally be deemed a nullity”… .

Here, the defendant Michael Costello died before the plaintiff’s motion was made and before the orders appealed from were issued. Since a 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 … . Furthermore, although this Court has recognized, under certain limited circumstances, that “where a party’s demise does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” … , those circumstances are not present here … . American Airlines Fed. Credit Union v Costello, 2018 NY Slip Op 03335, Second Dept 5-9-18

​CIVIL PROCEDURE (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/FORECLOSURE (DEATH OF A PARTY, CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/CPLR 1015  (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/DEATH OF A PARTY  (CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))/SUBSTITUTION (DEATH OF A PARTY, COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT))

You might also like
DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT).
PLAINTIFF’S PARKED VEHICLE WAS STRUCK FROM BEHIND BY DEFENDANT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY; THE FACT THAT PLAINTIFF MAY HAVE VIOLATED TRAFFIC RULES RE: PARKING SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT RELEVANT TO LIABILITY (SECOND DEPT).
FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT).
QUESTIONS OF FACT WHETHER DEFENDANT WAS AN OUT-OF-POSSESSION LANDLORD PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE LANDLORD IN THIS SLIP AND FALL CASE (SECOND DEPT). ​
Court Does Not Have the Power to Determine Whether Arbitrator Misinterpreted Collective Bargaining Agreement/Court Can Not Review Merits of Arbitrator’s Determination
Where Extrinsic Evidence Indicates a Party’s Interpretation of Ambiguous Language Is the Only Fair Interpretation, Summary Judgment Is Appropriate
Defendant in Medical Malpractice Action Should Have Been Allowed to Amend His Answer to Add Statute of Limitations Affirmative Defense
ALTHOUGH THE CITY GAVE A PERMIT TO A BUS COMPANY TO USE A PARKING LOT, THE CITY DID NOT DEMONSTRATE IT RELINQUISHED ALL CONTROL OVER THE MAINTENANCE OF THE PARKING LOT SUCH THAT IT COULD NOT BE HELD LIABLE IN THIS SLIP AND FALL CASE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION... ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED...