Hauze v Village Mall at Hillcrest Condominium

[*1] Hauze v Village Mall at Hillcrest Condominium 2012 NY Slip Op 50556(U) Decided on March 30, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2012
Supreme Court, Queens County

Martha Hauze, as Administratrix of the Estate of Jamie R. Toro a/k/a Jaime Toro, deceased,

against

Village Mall at Hillcrest Condominium et al.



10010/2008



For the Plaintiff: David Horowitz, P.C., by William J. Sanyer, 276 Fifth Avenue,

New York, New York 10001

For the Defendant Village Mall at Hillcrest Condominium: Margaret G. Klein & Associates, by A. Jeffrey Spiro, Esq., 200 Madison Avenue, New York, New York 10016

For the Defendant Consolidated Edison Company of New York, Inc.: Richard W. Babinecz, 4 Irving Place, New York, NY 10003 [no papers on this motion]

For the Defendant The Village Mall at Homeowners Association: No appearance/No Answer

Charles J. Markey, J.

In a prior opinion in this action, the undersigned, citing superabundant case law, stated:"Upon the death of a party, the Court is divested of jurisdiction to conduct proceedings in an action, and the matter is automatically stayed until a proper substitution of the personal representative of the estate of decedent is made." Toro v Village Mall at Hillcrest Condominium, 29 Misc 3d 1204(A), 2010 WL 3835609, 2010 NY Slip Op. 51694(U) [Sup Ct Queens County [*2]2010].

Jaime R. Toto, the original plaintiff, died on February 27, 2010. A defense motion for summary judgment had been marked fully submitted on March 18, 2010, and the Court denied all motions without prejudice and stayed the action until the appointment of a representative for Toro's Estate.

By stipulation dated January 21, 2011, that was So Ordered by the Honorable Jeremy S. Weinstein, Administrative Judge for Queens County, Supreme Court, Civil Term, and later filed with the Clerk of the Court on May 6, 2011, the caption of the action was changed to reflect the status of the Adminsitratrix in her representative capacity.

Plaintiff, citing the So Ordered Stipulation signed by Justice Weinstein and CPLR 1005 and 1021, moves to lift the automatic stay issued following plaintiff's decedent's death, to restore this matter to the Court's active calendar, to refer defendant Village Mall at Hillcrest Condominium's prior motion for summary judgment to the undersigned for decision, to set the matter for trial on all issues, and for costs and attorneys' fees to plaintiff's counsel.

Upon the foregoing papers, the branches of plaintiff's motion seeking to lift the automatic stay issued following the death of plaintiff's decedent and to restore this matter to the Court's active calendar are denied as academic since such relief has already been accomplished by the parties' so-ordered stipulation, dated January 21, 2011, and filed on May 6, 2011.

The branch of plaintiff's motion to refer the prior motion of defendant Village Mall at Hillcrest Condominium ("the Condominium") for summary judgment to this IAS Part for a decision based on the motion papers previously filed with the Court is denied since that motion, fully submitted after the death of plaintiff's decedent, is a nullity (see, Sample v Temkin, 87 AD3d 686 [2nd Dept. 2011]; Neuman v Neumann, 85 AD3d 1138, 1139 [2nd Dept. 2011]; Stancu v Cheon Hyang Oh, 74 AD3d 1322 [2nd Dept. 2010]; Cumberland Farms, Inc. v Raisch, 32 Misc 3d 1219(A), 2011 WL 2937246, 2011 NY Slip Op. 51366(U) [Sup Ct. Queens County 2011] [decision by the undersigned] In light of the death of Jaime R. Toro and the subsequent substitution of plaintiff and lifting of the stay, however, defendant Condominium, if it be so advised, may renew its prior motion for summary judgment (see, Lugo v GE Capital Auto Lease, 36 AD3d 409 [1st Dept. 2007]; see also, Faraone v National Academy of Television Arts & Sciences, 296 AD2d 349 [1st Dept. 2002]; Turner v Milligan, 37 AD2d 896 [3rd Dept. 1971]; Novick v Massapequa Family Care Center, 2009 WL 2912395, 2009 NY Slip Op 32018(U) [Sup Ct Nassau County 2009]).

Such motion by defendant Condominium must be made no later than thirty days after service upon it of a copy of this order bearing the dated stamp of the Clerk together with notice of entry, and must be made returnable before this Part.

The branch of plaintiff's motion seeking costs and attorney's fees is denied.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C. [*3]

Dated: March 30, 2012