Appellate Division: Second Judicial Department

M283816

MB/

FRANCESCA E. CONNOLLY, J.P.

ANGELA G. IANNACCI

CHERYL E. CHAMBERS

WILLIAM G. FORD, JJ.

2020-07578 Titus Constable, appellant, v Staten Island University Hospital, respondent. (Index No. 151365/2016)

DECISION & ORDER ON MOTION

2021-03615

Titus Constable, appellant,

v Staten Island University Hospital, respondent.

(Index No. 151365/2016)

Appeals from two orders of the Supreme Court, Richmond County, dated October 5, 2020, and May 20, 2021, respectively. By order to show cause dated December 15, 2021, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal under Appellate Division Docket No. 2021-03615 on the ground that the attorney who filed the notice of appeal for the deceased appellant, Titus Constable, lacked authority to act on his behalf. Motion by the respondent to dismiss the appeal under Appellate Division Docket No. 2020-07578 on the same ground. Cross motion, in effect, by Thomas Constable, as executor of the estate of Titus Constable, to be substituted nunc pro tunc for the deceased appellant, to amend the caption accordingly, and to consolidate the appeals or, in the alternative, to calendar the appeals together.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the motion and the cross motion and the papers filed in opposition thereto, it is

ORDERED that the Court's motion to dismiss the appeal under Appellate Division Docket No. 2021-03615 is denied, and on the Court's own motion, the notice of appeal from the order dated May 20, 2021, is deemed to be a notice of appeal by nonparty Thomas Constable, as executor of the estate of Titus Constable (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605; Medlock v Dr. William O. Benenson Rehabilitation Pavilion, 167 AD3d 994); and it is further,

ORDERED that the respondent's motion to dismiss the appeal under Appellate Division Docket No. 2020-07578 is held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof; and it is further,

ORDERED that the branches of the cross motion, in effect, by Thomas Constable, as executor of the estate of Titus Constable, to be substituted nunc pro tunc for the deceased appellant and to amend the caption accordingly are held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the cross motion which is to consolidate the appeals is denied; and it is further,

ORDERED that the branch of the cross motion which is to calendar and hear the appeals together is granted, the appeals will be calendared together and will be argued or submitted on the same date.

CONNOLLY, J.P., IANNACCI, CHAMBERS and FORD, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court