Appellate Division: Second Judicial Department

M263503

E/sl

JOHN M. LEVENTHAL, J.P.

CHERYL E. CHAMBERS

JOSEPH J. MALTESE

BETSY BARROS, JJ.

2015-03521 Jeanne Altman, et al., appellants, v Richard S. Dipreta, et al., respondents, et al., defendant. (Index No. 52574/14)

ORDER TO SHOW CAUSE

2016-10688

Jeanne Altman, et al., appellants,

v Richard S. Dipreta, et al., respondents,

et al., defendant.

(Index No. 52574/14)

Motion by the appellant Charles Altman to appoint Sofiya Nozhnik, as personal representative of the estate of the deceased appellant, Jeanne Altman, on appeals from two orders of the Supreme Court, Westchester County, dated March 24, 2015, and August 17, 2016, respectively, and to consolidate the appeals. Cross motion by the respondents Richard S. Dipreta and DiPretra Law Firm, LLP, to dismiss the appeals on the ground that Charles Altman lacked standing to seek relief on behalf of Jeanne Altman, and for failure to timely perfect.

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

ORDERED that on the Court's own motion, the appeal insofar as purportedly taken by Jeanne Altman from the order dated August 17, 2016, is dismissed, without costs or disbursements, on the ground that Charles Altman lacked authority to file a notice of appeal on behalf of the deceased Jeanne Altman (see Lewis v Kessler, 12 AD3d 421, 422); and it is further,

ORDERED that on the Court's own motion, the appeal insofar as taken by Charles Altman from the order dated August 17, 2016, is dismissed, without costs or disbursements, on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice (see CPLR 5701), and leave to appeal has not been granted; and it is further,

ORDERED that the branches of the motion which are to appoint Sofiya Nozhnik, as personal representative of the estate of the deceased appellant, Jeanne Altman, on the appeal from the order dated August 17, 2016, and to consolidate the appeals, and the branch of the cross motion which is to dismiss the appeal from the order dated August 17, 2016, are denied as academic; and it is further,

ORDERED that the branch of the motion which is to appoint Sofiya Nozhnik, as personal representative of the estate of the deceased appellant, Jeanne Altman, on the appeal from the order dated March 24, 2015, is denied without prejudice to seeking appropriate relief in the Supreme Court, Westchester County, or the Surrogate's Court, Sullivan County; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated March 24, 2015, for failure to timely perfect is denied; and it is further,

ORDERED that on the Court's own motion, the parties are directed to show cause why an order should or should not be made and entered dismissing the appeal from the order dated March 24, 2015, in the above-entitled proceeding pursuant to CPLR 1021 for failure to substitute a personal representative for the deceased appellant, Jeanne Altman, by each filing an affirmation or affidavit on that issue in the office of the Clerk of this Court and serving one copy of the same on each other on or before July 9, 2019; and it is further,

ORDERED that the branch of the cross motion which is to dismiss the appeal from the order dated March 24, 2015, on the ground that Charles Altman lacked standing to seek relief on behalf of Jeanne Altman is held in abeyance in the interim; and it is further,

ORDERED that the Clerk of this Court, or her designee, is directed to serve a copy of this order to show cause upon the parties, Nancy Buck, the former administrator of the estate of Jeanne Altman, and Edwin Altman, the former nominated Successor Executor of the estate of Jeanne Altman, by regular mail.

LEVENTHAL, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court