Appellate Division: Second Judicial Department

M272769

E/sl

ALAN D. SCHEINKMAN, P.J.

RUTH C. BALKIN

FRANCESCA E. CONNOLLY

VALERIE BRATHWAITE NELSON, JJ.

2017-08810 Jean Barone, etc., appellant, v Gilma Posada Barone, etc., et al., respondents. (Index No. 9162/2012)

ORDER TO SHOW CAUSE

Appeal from an order of the Supreme Court, Queens County, dated July 19, 2017. By decision and order on motion of this Court dated March 13, 2018, Jean Barone, as executor of the estate of Frank A. Barone, was substituted for the deceased appellant, Frank A. Barone, and the caption was amended accordingly.

On the Court's own motion, 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 (1) dismissing the appeal on the ground that the attorney who filed the notice of appeal for Frank A. Barone lacked authority to act on his behalf (see Lewis v Kessler, 12 AD3d 421, 422), (2) dismissing the appeal on the ground that the order dated July 19, 2017, was issued without substituting a personal representative for the estate of the deceased appellant, Frank A. Barone, and vacating the order as a nullity (see CPLR 1015; Matter of Einstoss, 26 NY2d 181), and (3) dismissing the appeal for failure to substitute, Nina Barone, personal representative for the estate of the Frank A. Barone, as the personal representative for the estate of the Frank A. Barone (see CPLR 1021), by uploading a digital copy of an affirmation or an affidavit, with proof of service thereof, through the digital portal on this Court's website, on or before October 5, 2020; 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 and Marshall M. Stern, P.C., by regular mail.

SCHEINKMAN, P.J., BALKIN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court