Tuesday, December 29, 2015

The death of a party.

Practice point:  The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a).

Student note:  CPLR 1021 is an exception to that principle.  It provides, in pertinent part, that a motion for substitution may be made by the successors or representatives of a party or by any other party within a reasonable time after the party's death. If "timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed."

Case:  Barnabas v. Boodoo, NY Slip Op 09394 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Extending time to settle a judgment.