Penza v Metropolitan Life Ins. Co.

Penza v Metropolitan Life Ins. Co. 2013 NY Slip Op 05560 Decided on August 7, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 7, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
THOMAS A. DICKERSON
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX, JJ.
2012-01621
(Index No. 1389/97)

[*1]Mary Penza, appellant,

v

Metropolitan Life Insurance Company, et al., respondents.




Preston & Wilkins, LLC, Levittown, N.Y. (Gregory R. Preston of
counsel), for appellant.
Proskauer Rose LLP, New York, N.Y. (Mark A. Saloman and
Julianne Apostolopoulos of counsel),
for respondent Metropolitan Life
Insurance Company.


DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination in violation of Executive Law § 296, the plaintiff appeals from an order of the Supreme Court, Kings County (Battaglia, J.), dated November 7, 2011, which denied her motion to vacate a stay of the action which had been previously imposed by order of the same court dated June 13, 2011.

ORDERED that the order dated November 7, 2011, is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in staying the action after being informed of the death of the individual defendant, Ottavio D'Elia (see CPLR 1015[a], [b]; Stancu v Cheon Hyang Oh, 74 AD3d 1322, 1323; Manto v Cerbone, 71 AD3d 1099, 1100). Furthermore, inasmuch as there is no indication that a personal representative had been appointed for the deceased defendant at the time the plaintiff moved to vacate the stay of the action, the court properly denied the plaintiff's motion.

The remaining contentions of the defendant Metropolitan Life Insurance Company are without merit.
ANGIOLILLO, J.P., DICKERSON, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court