Russo v City of New York

[*1] Russo v City of New York 2021 NY Slip Op 50654(U) Decided on June 17, 2021 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2021
Supreme Court, Kings County

Donna Russo, Plaintiff,

against

The City of New York, and DAHER SHAHEM, SHAMEM REVOCABLE TRUST and DAHER SHAHEM and DEEMA SHAHEM Co-Trustees of the SHAHEM REVOCCABLE TRUST, Defendant.



Index No. 501819/2018



Attorney for Plaintiff Donna Russo:

Matthew B. Kauget. Esq.

Law Offices of Gary P. Kauget

9201 4th Ave Ste 200a

Brooklyn, NY 11209

(718) 833-2496

Attorney for Defendant/Respondent The City of New York

Justin Lawrence Siebel, Esq.

New York City Law Department

350 Jay St, Fl 8

Brooklyn, NY 11201

(347) 597-2008

Attorney for defendants Deema Shahem, Shahem Revocable Trust and

Deema Shahem co-trustee of the Shahem Revocable Trust:

Jeffrey P. Yong, Esq. Martyn Martyn Smith Murray & Yong

330 Old Country Road, Suite 211

Mineola, NY 11501

516-739-0000
Francois A. Rivera, J.

By notice of motion filed on February 24, 2020, MARTYN & MARTYN as the prior attorneys for Daher Shahem and as the current attorney for all other remaining defendants (hereinafter the movants) have moved for an order pursuant to CPLR 1015 vacating plaintiff's Note of Issue and Certificate of Readiness for Trial because it was filed during the death stay of defendant Daher Shahem.

There is no dispute that defendant Daher Shahem passed away on November 18, 2018 as demonstrated by a death certificate filed under NYSCEF No. 35. There is also no dispute that the plaintiff filed a Note of Issue and Certificate of Readiness for Trial on April 23, 2019 as demonstrated by NYSCEF No. 26.

LAW AND APPLICATION

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a) (Medlock v Dr. William O. Benenson Rehab. Pavilion, 167 AD3d 994, 995 [2nd Dept 2018]). Although a determination rendered without such substitution will generally be deemed a nullity, determinations regarding substitution pursuant to CPLR 1021 are a necessary exception to the general rule, and the court does not lack jurisdiction to consider such a motion (id.). Since the death of Daher Shahem triggered a stay of all proceedings in the action pending substitution of a legal representative (see NYCTL 2004—A Trust v Archer, 131 AD3d 1213, 1214, 16 NYS3d 777, Danzig Fishman &

Decea v Morgan, 123 AD3d 968, 997 [2nd Dept 2015]), the filing of the note of issue in this case while the stay was in effect is a nullity. Inasmuch as it is a nullity, the court does not reach the alternative relief sought by the movant.

CONCLUSION

The instant action has been automatically stayed pursuant to CPLR 1015(a) as of November 18, 2018 due to the death of Daher Shahem. Consequently, the filing of a note of issue on April 23, 2019 is a nullity.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.