| Balsamo v City of New York |
| Motion No: 2021-02901 |
| Slip Opinion No: 2025 NY Slip Op 73898(U) |
| Decided on August 4, 2025 |
| Appellate Division, Second 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. |
Appellate Division: Second Judicial Department
M307024
AFA/
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
LINDA CHRISTOPHER
JAMES P. MCCORMACK, JJ.
|
2021-02901 Vito Balsamo, et al., appellants, v City of New York, et al., respondents. (Index No. 709172/2017)
| DECISION & ORDER ON MOTION |
Appeal from an order of the Supreme Court, Queens County, dated March 31, 2021. Motion by the respondents to dismiss the appeal pursuant to CPLR 1021 for failure to timely substitute a personal representative for the deceased appellant Vito Balsamo. By order to show cause dated June 13, 2025, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal insofar as taken on behalf of the deceased appellant, Vito Balsamo, on the ground that the notice of appeal was filed in violation of the statutory stay of proceedings which arose upon his death on April 9, 2021, and the respondents' motion was held in abeyance in the interim.
Now, upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the respondents' motion and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the motion to dismiss the appeal insofar as taken on behalf of the deceased appellant, Vito Balsamo, on the ground that the notice of appeal was filed in violation of the statutory stay of proceedings which arose upon his death on April 9, 2021, is granted, and the appeal insofar as taken on behalf of the deceased appellant, Vito Balsamo, is dismissed, without costs or disbursements (see CPLR 1015[a]; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713; Lewis v Kessler, 12 AD3d 421, 422); and it is further,
ORDERED that on the Court's own motion, the appeal insofar as taken by Josephine Balsamo is dismissed, without costs or disbursements, on the ground that the notice of appeal was filed in violation of the statutory stay of proceedings which arose upon the death of Vito Balsamo on April 9, 2021 (see CPLR 1015[a]; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713; Lewis v Kessler, 12 AD3d 421, 422); and it is further,
ORDERED that the motion by the respondents is denied as academic.
DUFFY, J.P., MILLER, CHRISTOPHER and MCCORMACK, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court