Upon the foregoing papers, it is ORDERED that the Article 78 proceeding is stayed and the petition held in abeyance, until the substitution of an estate representative for petitioner Maurice Hauges, or until further order of the Court.

Petitioner, a former employee of MTA Bus Company, commenced this Article 78 proceeding challenging respondents' determination to terminate his employment and seeking, inter alia, an order reinstating him and awarding him back pay. (Petition ¶¶ 1, 26, Ex. A.) Petitioner filed this Article 78 petition on November 27, 2013. By their verified answer dated May 15, 2014, respondents informed the Court that petitioner had died on February 6, 2014. (Answer ¶ 1, Ex. A.) Respondents argue that the petition is abated or moot because petitioner is dead, and therefore the proceeding must be dismissed.

The defense of mootness or abatement with respect to this Article 78 proceeding appears to lack merit. (See Matter of City of Rome v State of NY Pub. Empl. Relations Bd., 283 AD2d 817, 819 [3d Dept 2001] ["[The decedent's] unfortunate death during the pendency of the appeal did not render the appeal moot. Notably an award of back pay, which is primarily at issue here, would inure the benefit to [the decedent's] estate."] [internal citations omitted]; Matter of West v Board of Trustees of Eggertsville Common School Dist., 89 AD2d 796 [4th Dept 1982] [finding that petitioner's claims had not abated after decedent's death as the proceeding included a claim for back pay]; Matter of Janke v Community School Bd. of Community School Dist. No. 19, 186 AD2d 190, 195 [2d Dept 1992] ["Although we conclude that the decedent was improperly removed from the payroll on September 16, 1983, we disagree with the Supreme Court's [decision dated June 1, 1989] that the petitioner is entitled to receive back pay and benefits from that date to the date of decedent's death in 1985. . . . We therefore find that the petitioner is entitled to retroactive pay and benefits for the period of September 16, 1983, to October 1, 1984."]

The Court, however, cannot now formally act on the merits of respondents' defenses or the special proceeding itself. The death of the petitioner stays the proceeding until the substitution of an estate representative. (See CPLR 1015; EPTL 11-3.1, 11-3.2; Grant v Blum, 76 AD2d 823 [1st Dept 1980] [finding that Article 78 proceeding could not go forward in its existing state following death of petitioner, and would accordingly be marked off, subject to restoration upon designation of an estate representative]; Matter of Drumm v Shah, 107 AD3d 1476 [4th Dept 2013] [finding transfer of Article 78 proceeding void because legal representative for deceased petitioner had not been designated]; see also Perez v City of New York, 95 AD3d 675, 677 [1st Dept 2012] ["It is settled that the death of a party stays the action as to him or her pending the substitution of a legal representative, and any determination rendered without such a substitution is generally deemed a nullity.'"] [internal citations omitted]; Meehan v Washington, 242 AD2d 286, 287 [2d Dept 1997] ["[T]he death of a party terminates his attorney's authority to act [on his behalf] . . ."].)

Accordingly, the Court orders that the proceeding be stayed, and upon [*2]appointment of an estate representative, the proceeding can be restored to the active calendar by stipulation or motion. To the extent practicable, the Court urges petitioner's former counsel to contact petitioner's next-of-kin to facilitate the appointment of an estate representative. Following appointment, the estate representative, or if represented, his or her counsel, should make an application to the Court to lift the stay. The petition is held in abeyance until the stay is lifted.

Copies to both sides.

New York, New York