| Russo v City of New York |
| 2021 NY Slip Op 50654(U) [72 Misc 3d 1206(A)] |
| Decided on June 17, 2021 |
| Supreme Court, Kings County |
| Rivera, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Donna Russo,
Plaintiff,
against The City of New York, and DAHER SHAHEM, SHAMEM REVOCABLE TRUST and DAHER SHAHEM and DEEMA SHAHEM Co-Trustees of the SHAHEM REVOCCABLE TRUST, Defendant. |
By notice of motion filed on February 24, 2020, MARTYN & MARTYN as the prior attorneys for Daher Shahem and as the current attorney for all other remaining defendants (hereinafter the movants) have moved for an order pursuant to CPLR 1015 vacating plaintiff's Note of Issue and Certificate of Readiness for Trial because it was filed during the death stay of defendant Daher Shahem.
There is no dispute that defendant Daher Shahem passed away on November 18, 2018 as demonstrated by a death certificate filed under NYSCEF No. 35. There is also no dispute that the plaintiff filed a Note of Issue and Certificate of Readiness for Trial on April 23, 2019 as demonstrated by NYSCEF No. 26.
The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a) (Medlock v Dr. William O. Benenson Rehab. Pavilion, 167 AD3d 994, 995 [2nd Dept 2018]). Although a determination rendered without such substitution will generally be deemed a nullity, determinations regarding substitution pursuant to CPLR 1021 are a necessary exception to the general rule, and the court does not lack jurisdiction to consider such a motion (id.). Since the death of Daher Shahem triggered a stay of all proceedings in the action pending substitution of a legal representative (see NYCTL 2004—A Trust v Archer, 131 AD3d 1213, 1214, 16 NYS3d 777, Danzig Fishman &
Decea v Morgan, 123 AD3d 968, 997 [2nd Dept 2015]), the filing of the note of issue in this case while the stay was in effect is a nullity. Inasmuch as it is a nullity, the court does not reach the alternative relief sought by the movant.
The instant action has been automatically stayed pursuant to CPLR 1015(a) as of November 18, 2018 due to the death of Daher Shahem. Consequently, the filing of a note of issue on April 23, 2019 is a nullity.
The foregoing constitutes the decision and order of this Court.