Appellate Division: Second Judicial Department

M61488

E/sl

REINALDO E. RIVERA, J.P.

PETER B. SKELOS

STEVEN W. FISHER

DANIEL D. ANGIOLILLO, JJ.

2006-11242 In the Matter of Daniel Bryan, appellant, v Catherine O'Connor, respondent. (Docket No. U-336/88)

DECISION & ORDER ON MOTION

Appeal by Daniel Bryan from an order of the Family Court, Suffolk County, dated October 31, 2006. During the pendency of the appeal the respondent, Catherine O'Connor, died. The appeal has been held in abeyance pending substitution of a personal representative of the respondent. More than four months elapsed since notice of the death was given to the Court and no motion was made to dismiss the appeal or to substitute a personal representative in the deceased party's stead. By order to show cause dated September 25, 2007, the parties to the appeal, or their attorneys, and the persons interested in the estate of the deceased party thereto were directed to show cause before this Court pursuant to CPLR 1021, why an order should or should not be made pursuant to CPLR 1021 dismissing the appeal for failure to effect timely substitution by filing an affidavit or affirmation on that issue with the Clerk of this Court.

Upon the order to show cause and the papers filed in response thereto, it is

ORDERED that the motion is denied; and it is further,

ORDERED that on or before January 22, 2008, the appellant shall either submit an order appointing a personal representative for the respondent or by January 29, 2008 advise this Court of the status of the Surrogate's Court proceedings to appoint a personal representative for the respondent.

RIVERA, J.P., SKELOS, FISHER and ANGIOLILLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court