| Vincent D'accolti & Mary D'accolti (deceased) v Vailankani, Inc. |
| Motion No: 2011-00282 sc |
| Slip Opinion No: 2011 NY Slip Op 80203(U) |
| Decided on August 1, 2011 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
of the State of New York for the 9th & 10th judicial Districts
FRANCIS A. NICOLAI, P.J.
MELVYN TANENBAUM
JOHN R. LaCAVA, JJ.
DECISION & ORDER ON MOTION
| Vincent D'Accolti and Mary D'Accolti (Deceased), Respondents, v Vailankani, Inc., Appellant, and "John Doe" and "Jane Doe", Undertenants. |
Appeal from an order of the District Court of Suffolk County, Sixth District, entered October 28, 2010. The order denied appellant's motion to, among other things, vacate a final judgment entered following a default under a stipulation of settlement.
On the court's own motion, it is
ORDERED that the appeal is dismissed and the order entered October 28, 2010 vacated.
The appeal is dismissed and the order appealed from vacated because, as indicated in the caption, respondent Mary D'Accolti was deceased at the time the proceeding was commenced (see Rocha v Figueirdo, 50 AD3d 876 [2008]) and because respondent Vincent D'Accolti died subsequent to the commencement of the proceeding and prior to the making of the motion giving rise to the order appealed from, and no substitution was made (see European Am. Bank v Strab Constr. Corp., 196 AD2d 479 [1993]). We note that the death of Vincent D'Accolti divested the court of jurisdiction to conduct any proceedings, including the entry of the final judgment, until a proper substitution had been made (see Paul v Ascher, 106 AD2d 619 [1984]).
ENTER:
Paul Kenny
Chief Clerk