Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on September 5th, 2024, under motion sequence number five, by Gregory S. Newman on behalf of Fergus Odaly III (hereinafter the plaintiff) seeking an order: (1) lifting the stay in this action marked by the court on June 20th, 2024 pursuant to CPLR §1015, on the grounds that a Decree Granting Administration has been issued on June, 11th, 2024; and (2) permitting the caption in this matter to be amended, thereby reflecting Christine Dilandro, as Administrator of the Estate of the plaintiff, deceased; and (3) amending all papers, pleadings and proceedings accordingly.

On February 19th, 2021, Fergus Odaly III commenced this action against the defendants, Rite Aid of New York, Inc., and Military Car Sales, Inc. to recover damages for personal injury, by filling a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office. The prior counsel to the plaintiff, Gregory S. Newman, verified the complaint.

The decedent plaintiff alleged that he was injured due to a hazardous condition by defendants' negligence in maintaining safe conditions, such as providing sufficient lighting and ensuring safe passageways, leading to his injuries as he tripped and fell over a display pallet or other obstruction in the store following a sudden lighting failure.

On February 12, 2024, the plaintiff died of causes unrelated to the accident and due to his death. On June 20, 2024, pursuant to CPLR §1015, the court marked this action stayed. On June 11, 2024, the plaintiff's sister, Christine Dilandro, was appointed Administrator of the Estate of the plaintiff.

The movant's motion consists of the notice of motion, an affirmation of good faith pursuant to NYCRR 202.7 (a), and an affirmation of plaintiff's counsel in support. In the affirmation in support, the prior counsel to the decedent plaintiff annexed exhibits A through C. Exhibit A is a copy of the summons and verified complaint and affirmation of service. Exhibit B is copy of the court order issued on June 6th, 2024, indicating that the matter is stayed pursuant to CPLR §1015. Exhibit C is a copy of the Certificate of Appointment of Administrator issued on June 11th, 2024.

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 (Aurora Bank FSB v Albright, 137 AD3d 1177, 1178 [2nd Dept 2016], citing NYCTL 2004-A Trust v Archer, 131 AD3d 1213, 1214 [2nd Dept 2015]; see CPLR 1015, 1021), Furthermore, the death of a party terminates the authority of the attorney for that person to act on his or her behalf (Aurora Bank FSB, 137 AD3d at 1178, quoting Hyman v Booth Mem. Hosp., 306 AD2d 438 [2nd Dept 2003]). CPLR 1021 creates an exception to the court's lack of jurisdiction to the extent of permitting a motion for substitution and, conversely, a motion for dismissal for failure to make timely substitution (NY C.P.L.R. 1021 (McKinney) (Vincent C. Alexander, Practice. Commentaries, McKinney's Cons Laws of NY Practice Commentary CPLR C1021:2).

Here, the notice of motion was made by the plaintiff's prior counsel and the certificate of appointment that counsel annexed established that plaintiff Fergus Odaly III died on February 12, 2024. Consequently, the movant's authority to act on behalf of the plaintiff terminated on that date (see Aurora Bank FSB, 137 AD3d at 1178). Accordingly, the movant has no standing to make the instant motion.

Furthermore, when a motion for substitution is made by a party other than the administrator of the estate, the motion papers must be served on the decedent's personal representative with all the formalities: that CPLR Article 3 prescribes for service of process (Horseman Antiques, Inc. v Huch, 50 AD3d 963, 856 [2nd Dept 2008]; GMAC Mortgage Corp. v. Tuck, 299 AD2d 315 [2nd Dept 2002]).

The instant motion was not served upon Christine Dilandro, the administrator of the estate of the plaintiff. On February 12, 2024, the date Fergus Odaly III died, the instant action was automatically stayed by operation of law: (Gonzalez v. Ford Motor Co., 295 AD2d 474 [2nd Dept. 2002]). The action will remain stayed until a proper substitution of the decedent by an administrator of his estate or until a further order of the Court.

The branch of the instant motion filed by prior counsel to Fergus Odaly III for an order pursuant to CPLR 1021 substituting Christine Dilandro, as administrator of the estate, as plaintiff and amending the caption to reflect the substitution and amending all papers, pleadings and proceedings accordingly is denied without prejudice.

If such an application is to be made in the future, the movant must proceed by an order to show cause.

The foregoing constitutes the decision and order of this Court.