Cumberland Farms, Inc. v Raisch

[*1] Cumberland Farms, Inc. v Raisch 2011 NY Slip Op 51366(U) Decided on July 21, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2011
Supreme Court, Queens County

Cumberland Farms, Inc., Plaintiff

against

Kenneth Lee Raisch, MARY LOUISE MANNIX, THE ESTATE OF JAMES J. MANNIX, JOSEPH MATTONE and JOHN DOES "1" through "10" being and intended to be those unknown persons and/or entities acting in concert with, Defendants.



30121/2010

 

For the Plaintiff: McCusker, Anselmi, Rosen & Carvelli, P.C., by Paul McCusker and Michael R. Futterman, Esqs., 805 Third Ave., New York, NY 10022

For the Defendants: Friedland Laifer and Robbins, LLP, by Eugene P. Hanson, Esq., 62 William St., New York, NY 10005

Charles J. Markey, J.

The action concerns a leasehold and an alleged contamination of real property, with a cleanup operation being supervised by the New York State Department of Environmental Conservation. The defendants have moved to dismiss the complaint based on alleged documentary evidence and other grounds.

At the outset, the Court notes that the death of Mary Louise Mannix on May 29, 2010, terminates defendants' attorney's authority to act and stays the proceedings pending the substitution of a legal representative (Neuman v Neumann, ___ AD3d ____, 2011 WL 2571003, 2011 NY Slip Op 05681 [2nd Dept. 2011]; Manto v Cerbone, 71 AD3d 1099 [2nd Dept. 2010]]; [*2]Rumola v Maimonides Med. Ctr., 37 AD3d 696 [2nd Dept. 2007]; Giroux v Dunlop Tire Corp., 16 AD3d 1068 [4th Dept. 2005]; Singer v Riskin, 32 AD3d 839 [2nd Dept.2006]; Weber v Bellinger, 124 AD2d 1009 [4th Dept. 1986]; see, Thomas v Benedictine Hosp., 8 AD3d 781 [3rd Dept. 2004]; Pavone v Walters, 214 AD2d 1052 [4th Dept. 1995]).

A party's death divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made, pursuant to CPLR 1015(a) (Noriega v Presbyterian Hosp. in City of NY, 305 AD2d 220 [1st Dept. 2003]; see also, Schraven v Town of Tonawanda, 238 AD2d 952 [4th Dept. 1997]).As stated in the foregoing cases, any order after the death of a party and before the substitution of a legal representative is void.

Once a substitution is effected, defendants, if they be so advised, may, of course, move anew for the relief they seek by the motion made herein (Faraone v. Nat'l Acad. of TV Arts & Scis., 296 AD2d 349 [1st Dept. 2002]; Wisdom v Wisdom, 111 AD2d 13 [1st Dept. 1985]).

The only exception to the foregoing general rule, not applicable here, is where the causes of action of a deceased plaintiff survive only as to a co-plaintiff; in such an instance, the action may proceed without a substitution, and the decedent's death is simply noted on the record (Neuman v Neumann, ___ AD3d ____, 2011 WL 2571003, 2011 NY Slip Op 05681 [2nd Dept. 2011]).

Accordingly, upon the foregoing papers and the authorities cited herein, the defendants' motion is hereby denied with leave to renew.

The foregoing constitutes the decision and order of the Court.

Dated: July 21, 2011

J.S.C.