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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: July 22, 2018

Party’s Death Stays Action and Orders Issued When Stay Should Have Been in Effect Are Void

On June 28, 2018, Justice Ash of the Kings County Commercial Division issued a decision in Vizzini v. Vizzini-Oswald, 2018 NY Slip Op. 31529(U), holding that proceedings in an action should have been stayed once a party died and that all orders entered since the death were nullities, explaining:

The court recently discovered that defendant Charles Joseph Vizzini died on May 30, 2017, during the pendency of this action. According to the Kings County Surrogate’s Court, Tina M. Vizzini filed a petition for letters of administration for the Estate of Charles Joseph Vizzini on November 21, 2017 under File No. 2017-4958, and letters of administration have not yet been issued.

It is well settled that the death of a party stays the action as to him or her pending the substitution of a legal representative, and any determination rendered without such a substitution is generally deemed a nullity. Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent pursuant to CPLR 1015(a).

Thus, by operation of law, this action has been automatically stayed since the death of Charles Joseph on May 30, 2017. Consequently, all orders issued after the death of Charles Joseph including the court’s July 2017 Order and the October 2017 Stay are deemed to be nullities and are, therefore, vacated because the court lacked jurisdiction to issue those orders.

(Internal quotations and citations omitted).

This decision shows the serious consequences of not obeying court procedural rules. Here, all the court’s decisions entered since the defendant died were vacated because the court was not informed and a legal representative did not substitute for the deceased. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding procedure in the New York state courts, particularly in the courts’ Commercial Divisions.

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