Kahan v Wakefern Food Corp.
Motion No: 2017-09788
Slip Opinion No: 2018 NY Slip Op 87960(U)
Decided on November 5, 2018
Appellate Division, 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.


Supreme Court of the State of New York

Appellate Division: Second Judicial Department

M257166

E/afa

RUTH C. BALKIN, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

ANGELA G. IANNACCI, JJ.

2017-09788

Eva Kahan, et al., appellants, v Wakefern

Food Corp., et al., respondents.

(Index No. 3036/13)

DECISION & ORDER ON MOTION

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. By order to show cause dated September 11, 2018, the parties were 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 which arose upon her death, and the attorney who filed the notice of appeal lacked authority to act on behalf of the deceased, and vacating the judgment, insofar as it pertains to Eva Kahan, as a nullity, and the respondents' motion was held in abeyance in the interim.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the respondents' motion and the papers filed in opposition thereto, it is

ORDERED that the motion to dismiss the appeal is granted, the appeal insofar as taken on behalf of the deceased appellant, Eva Kahan, is dismissed, without costs or disbursements (see CPLR 1015[a]; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713; Lewis v Kessler, 12 AD3d 421, 422), and the judgment, insofar as it pertains to Eva Kahan, is vacated (see CPLR 1015; Matter of Einstoss, 26 NY2d 181); and it is further,

ORDERED that the respondents' motion is denied as academic; and it is further,

ORDERED that on the Court's own motion, the time to perfect the appeal insofar as taken by Rudolph Kahan is extended to December 4, 2018.

BALKIN, J.P., SGROI, COHEN and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court