Appellate Division: Second Judicial Department

M225261

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN, JJ.

2015-05885 Stepp Payne, et al., appellants-respondents, v George Alfred Murray, etc., et al., defendants, Keyspan Energy Delivery, respondent, Consolidated Edison Company of New York, Inc., et al., respondents-appellants. (Index No. 2146/07)

ORDER TO SHOW CAUSE

ORDERED that on the Court's own motion, the order to show cause of this Court dated January 13, 2017, in the above-entitled case is recalled and vacated, and the following order to show cause is substituted therefor:

Application by the appellants-respondents on an appeal and cross appeals from an order of the Supreme Court, Kings County, dated May 29, 2015, to substitute Stepp Payne, Jr., as administrator of the estate of Wynonnie Payne, for the deceased appellant-respondent, Wynonnie Payne, and to amend the caption accordingly. The appellant-respondent Wynonnie Payne died on June 18, 2006.

Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the application is granted and Stepp Payne, Jr., as administrator of the estate of Wynonnie Payne, is substituted for the deceased appellant-respondent ,Wynonnie Payne, and the caption is amended accordingly; and it is further,

ORDERED that on the Court's own motion, the parties are directed to show cause before this Court why an order should or should not be made and entered (1) dismissing the appeal and cross appeals, on the grounds that the notice of appeal and notices of cross appeals were filed in violation of the statutory stay of proceedings (see CPLR 1015[a]; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713) which arose upon the death of Wynonnie Payne, and dismissing the appeal on behalf of Wynonnie Payne on the ground that counsel had no authority to file the notice of appeal on her behalf, and (2) vacating the order dated May 29, 2015, as a nullity (see CPLR 1015; Matter of Einstoss, 26 NY2d 181), by filing an affirmation or affidavit on that issue with the Clerk of this Court and serving one copy of the same on each other on or before February 15, 2017; and it is further,

ORDERED that the Clerk of this Court, or her designee, shall serve a copy of this order to show cause on the parties by regular mail.

ENG, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court