Nunez v. Goodman

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about June 30, 1998, which denied defendants’ motion to substitute as a defendant the deceased defendant’s executrix, and denied plaintiffs’ cross motion to restore the action to the calendar with leave to renew upon proper papers that include an affidavit of merit, unanimously reversed, on the law, without costs, the motion and cross motion granted, and the action restored.

The death of the defendant Elliott Goodman in April 1995 divested the IAS Court of jurisdiction to dismiss the action one year later while substitution of a legal representative for the deceased defendant was pending. Therefore, the order of dis*652missal of the action is void (Harding v Noble Taxi Corp., 155 AD2d 265; Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819).

Inasmuch as the executrix now seeks substitution, her motion should be granted and the action restored to active status. Concur — Ellerin, P. J., Tom, Mazzarelli, Wallach and Lerner, JJ.