| Barone v Barone |
| Motion No: 2019-01834 |
| Slip Opinion No: 2020 NY Slip Op 67350(U) |
| Decided on June 22, 2020 |
| 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. |
Appellate Division: Second Judicial Department
M271443
E/sl
ALAN D. SCHEINKMAN, P.J.
ROBERT J. MILLER
JOSEPH J. MALTESE
BETSY BARROS, JJ.
|
2019-01834 Frank A. Barone, plaintiff-appellant, v Gilma Posada Barone, et al., respondents; Law Office of Michael J. Alber, P.C., nonparty-appel (Index No. 9162/2012)
| ORDER TO SHOW CAUSE lant. |
Appeals from an order of the Supreme Court, Queens County, dated January 3, 2019. Motion by the respondents, inter alia, to dismiss the appeal by the plaintiff-appellant for failure to timely perfect and to dismiss the appeal by the nonparty-appellant as untimely taken. Cross motion by the nonparty-appellant to amend the caption and to extend the time to perfect the appeal.
Upon the papers filed in support of the motion and the cross motion and the papers filed in opposition thereto, it is
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 insofar as taken by the deceased plaintiff-appellant, Frank A. Barone, on the ground that the attorney who filed the notice of appeal for the deceased plaintiff-appellant, Frank A. Barone, lacked authority to act on his behalf (see Lewis v Kessler, 12 AD3d 421, 422), (2) dismissing the appeal insofar as taken by Law Office of Michael J. Alber, P.C., on the ground that it is not aggrieved by the order dated January 3, 2019 (see CPLR 5511), and (3) vacating the order as a nullity (see CPLR 1015; Matter of Einstoss, 26 NY2d 181) because it was made without substitution of an estate representative, 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 July 22, 2020; and it is further,
ORDERED that the motion and the cross motion are held in abeyance in the interim; 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 Lewis C. Edelstein, Marshall M. Stern, P.C., Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, and Law Office of Michael J. Alber, by regular mail.
SCHEINKMAN, P.J., MILLER, MALTESE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court