| Anthony Nicholas v John Doe |
| Motion No: 2015-00642 KC |
| Slip Opinion No: 2016 NY Slip Op 61347(U) |
| Decided on January 8, 2016 |
| 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 2nd, 11th & 13th judicial Districts
MICHAEL L. PESCE, P.J.
MICHELLE WESTON
MARTIN M. SOLOMON, JJ.
ON MOTION
| Anthony W. Nicholas, Respondent, v John Doe and Jean Lima, Appellants. |
Appeal from an order of the Civil Court of the City of New York, Kings County, entered August 1, 2013. The order purported to grant a motion by the attorney for the deceased respondent Anthony W. Nicholas to amend the summons and complaint to add Lois M. Rosenblatt, Public Administrator of Queens County, as Administrator of the Estate of Anthony Nicholas, as a plaintiff in the action and to restore the action to the trial calendar.
On the court's own motion, it is
ORDERED that the parties show cause before this court why the appeal from the order entered August 1, 2013 should or should not be dismissed, the order entered August 1, 2013 vacated, and the motion giving rise to the order dismissed on the ground that the motion, purportedly having been made by an attorney for a deceased party, and the order entered thereon are nullities (see Vapnersh v Tabak, 131 AD3d 472 [2015]; Macomber v Cipollina, 226 AD2d 435 [1996]; 6A NY Jur 2d, Attorneys at Law § 85), by filing an affidavit or affirmation on that issue with the Clerk of this court on or before January 19, 2016; and it is further,
ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order on motion on the parties' attorneys and on the Public Administrator of Queens County by regular mail.
CPLR 1021 provides that "[a] motion for substitution may be made by the successors or representatives of a party or by any party." The motion giving rise to the order appealed from was made and signed by counsel in his capacity as attorney for Anthony W. Nicholas, who was deceased at the time the motion was made, and no showing was made that counsel was authorized to move on behalf of the Public Administrator.
ENTER:
Paul Kenny
Chief Clerk