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Upon the foregoing papers, this motion for a substitution of Peter Cobrin by Toby Cobrin, the executor of his estate, is granted. The cross-motion to vacate the decision dismissing the second and fourth causes of action against all of the defendants is denied.
It is true that the death of a party to the action will generally stay any further activities in the case until there is a substitution of a representative of the estate for the deceased party.
Any activity before such an appointment is a nullity (Chimenti v Hertz Corp., 25 AD2d 562, 267 NYS2d 329 [T'D ept 19601). The question here is what happens to the parties in ;1 multiple -party lawsuit when the decision is rendered after, as in this instance, the death of one of the parties.
This is an action for- unpaid base rent and additional rent under a sublease agreement.
After the motion was argued and fully submitted to the Court, defendant Cobrin died. Ten days later the Court rendered its decision.
Where there are multiple defendants to if lawsuit and a party dies before the motion is made, the decision is void (Possenti v Laizza, S4AD 72S, 387 N Y S2d 679 [2d Dcpt 1976 I) The Second Department has continued to adhere to this result (See, e.g., Cocozzslli, Lerner, Meriizkle & Grossman v Basile, 247 ADM 354, 668 NY S2d 632 [2d Dept 19981).
Plaintiff has cited Furooize v National Academy of Arts and Sciences, 296 AD2d 349,745 NYS2d 163 [ lst Dept 20021) to illustrate the First Department's agreement with the approach of the Second Department. But, once again, in that case, the motion was made after the defendant had died, and the Court, consistent with the Appellate Division, Second Department decisions in this action, held that the trial Court did not have jurisdiction over the matter
The decisions on the issues faced here, while relatively Pew Tnvoi- tlie upholding of the dclermination against all of the defendants, including the deceased. While neither of the parties were able to locate a Supreme Court decision on point, the Court was able to unearth a decision of ancient vintage: (Smith v Miller, 3 How Pr. 132 [Sup NY 18471). ‘there, by the time the referee’s report reached the judge, the plaintiff had died. Nevertheless, the Court denied the defendant’s motion 10 set aside the verdict, ordering that the decision be centered nunc pro tunc for Ilic May term (the Court’s decision was rendcrcd in the July term). In Ratfrey 1’ Rcynnr, IO NY3d 494, 225 NYS2d 39 [ 19621, despite the dcath of both plaintifl’s after the entry ol‘ the judgment but before 3 decision on the appeal was rendered, the Court held in words of Judge Brcitel:
An Appellate Court is empowered to rendered decision as of the date of the argument or submission of the appeal and in the light of the situation then prevailing arid for that purpose to disregard the death of a party occurring in the intervening period (citations omitted) Keynor, supra 10 NY2d at 198,225 NYS2d at 43 is an early illustration of the principle that the death of a party does not necessarily stop a decision from being rendered after that party’s death where the death occurs after the motion is fully argued and submitted. In Kuye v AssociatedMetaZ arzd Minerals, 18 AD2d 194,238N YS2d 1009 [2’Id.U ept 1963]), the court affirmed thc Court’s decision below where the plaintiff died after the appeal was submitted but before the decision was rendered. The Court held that the decision was to “be entered nunc pro tunc as OK .., the date of the submission of the appeal ...7 7
As to defendants’ motions to resettle and reargue, the Court recalls, having decided the motions when I was unaware at the time that the defendant had died. Inasmuch as they were submitted alter the defendant's death, they xc a nullity and may be treated technically as a nullity, as never having been made or decided. But, unless defendants have arguments other than raised in those motions, as a practical matter they would be wasting their time and money in renewing those motions. 1 would very likely deny those motions again.
Based on the foregoing, this Court holds that the decision to substitute the executor of Peter Cobrin's estate is granted and the cross-motion to dismiss the second arid fourth causes of action is denied
The Clerk of the Part is directed lo schedule a status conference for this action.
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