Appellate Division: Second Judicial Department

M255111

E/mmMARK C. DILLON, J.P.

JOHN M. LEVENTHAL

SYLVIA O. HINDS-RADIX

VALERIE BRATHWAITE NELSON, JJ.

2017-09788 Eva Kahan, et al., appellants, v Wakefern Food Corp., et al., respondents. (Index No. 3036/13)

ORDER TO SHOW CAUSE

Motion by the respondents pursuant to CPLR 1015 and 1021 to dismiss an appeal from a judgment of the Supreme Court, Kings County, dated September 8, 2017, for failure to substitute a personal representative for the deceased appellant, Eva Kahan, who died on February 6, 2017.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the parties are directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal insofar as taken on behalf of the deceased appellant, Eva Kahan, on the ground that the notice of appeal was 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 her death, and the attorney who filed the notice of appeal lacked authority to act on behalf of the deceased (see Lewis v Kessler, 12 AD3d 421, 422), and vacating the judgment, insofar as it pertains to Eva Kahan, 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 October 3, 2018; and it is further,

ORDERED that the respondents' motion is held in abeyance in the interim; and it is further,

ORDERED that the Clerk of this Court, or her designee, shall serve copies of this order to show cause on the counsel for the appellant Rudolph Kahan and the respondents, and Esther Gutwein, voluntary administrator of the estate of the deceased appellant, Eva Kahan, by regular mail.

DILLON, J.P., LEVENTHAL, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court