A. D. Silver v. Tucks Enterprises Inc.

In a mortgage foreclosure action, the appeal, as limited by the appellants’ brief, is from so much of an order of the Supreme Court, Rockland County, entered December 6, 1977, as granted that part of the plaintiffs motion that requested leave to serve an amended summons and complaint. Order reversed, insofar as appealed from, without costs or disbursements and that part of the motion requesting leave to serve an amended summons and complaint is denied without prejudice to renew after a legal representative has been appointed to safeguard the interests of the estate of Marie Martello, now deceased. The record reveals that Marie Martello died before the notice of motion was served, that the fact of her death was known to plaintiffs attorney at that time, and that no representative had been substituted. Accordingly, leave to serve an amended summons and complaint should not have been granted. Shapiro, J. P., Cohalan, Hawkins and O’Connor, JJ., concur.