| MARK SMUKALL AND DIANE SMUKALL V DOLLAR TREE STORES, INC. DENTO, INC., DENT ENTERPRISES, INC., STEVEN M. SAILING, DOING |
| Motion No: CA 17-00255 |
| Slip Opinion No: 2020 NY Slip Op 76152(U) |
| Decided on December 11, 2020 |
| Appellate Division, Fourth 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. |
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND LINDLEY, JJ.
CA 17-00255
| MARK SMUKALL AND DIANE SMUKALL,
PLAINTIFFS-APPELLANTS, V DOLLAR TREE STORES, INC., DEFENDANT-APPELLANT, DENTO, INC., DENT ENTERPRISES, INC., STEVEN M.
SAILING, DOING BUSINESS AS B. SAILING SITE & LANDSCAPE CONTRACTOR AND B. SAILING SITE & LANDSCAPE CONTRACTOR,
INC., DEFENDANTS-RESPONDENTS. |
Appellants having moved for an order of substitution, a revised scheduling order, and restoration of the appeal taken herein from an order of the Supreme Court, Erie County, entered August 30, 2016, to the Court's calendar for oral argument, and respondent B. Sailing Site & Landscape Contractor, Inc. having cross-moved to dismiss the appeal for failure to make a timely substitution,
Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,
It is hereby ORDERED that the motions are dismissed, without prejudice, on the ground that "[i]n the absence of proper service, no personal jurisdiction was acquired over the personal representative" (Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2d Dept 2008]; see Gonzalez v Ford Motor Co., 295 AD2d 474, 475 [2d Dept 2002]).
Entered: December 11, 2020
Mark W. Bennett
Clerk of the Court