of the State of New York for the 9th & 10th judicial Districts

ANGELA G. IANNACCI, J.P.

BRUCE E. TOLBERT

JERRY GARGUILO, JJ.

DECISION & ORDER ON MOTION

Motion by appellant for a stay pending the determination of an appeal from an order of the District Court of Nassau County, First District, dated October 18, 2013, and, in effect, for summary reversal. Separate motion by respondent for leave to serve and file papers in sur-reply to appellant's motion. By decision and order on motion dated April 16, 2014, it appearing that there was a question of fact as to whether appellant is an adult incapable of adequately defending his rights (CPLR 1201), the matter was remitted to the District Court for a hearing to determine whether appellant is an adult incapable of adequately defending his rights and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202, and appellant's motion was held in abeyance in the interim. By decision and order dated June 20, 2014, the District Court, following a hearing, determined that appellant is not an adult incapable of adequately defending his rights.

Upon the determination of the District Court and the papers filed in support of the motions, it is

ORDERED that respondent's motion is dismissed, as an estate is not a legal entity, and any action on behalf of or against the estate must be by or against the executor or administrator of the estate in his representative capacity (see Grosso v Estate of Gershonson, 33 AD3d 587 [2006]); and it is further,

ORDERED that the branch of appellant's motion seeking a stay pending the determination of the appeal is granted on condition that the appeal be perfected on or before November 7, 2014, and appellant's motion is otherwise denied.

ENTER:

Paul Kenny

Chief Clerk