WHEN A PARTY DIES DURING A LITIGATION

This action started in 2014.  A motion was made in 2017 after two of the defendants passed way.

U & Me Homes, LLC v County of Suffolk, 2019 NY Slip Op 01119, Decided on February 13, 2019. Appellate Division, Second Department:

"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)" (NYCTL 2004-A Trust v Archer, 131 AD3d 1213, 1214; see JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713, 714; Neuman v Neumann, 85 AD3d 1138, 1139). "A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction" over the deceased party's personal representative, and such a motion "is not a mere technicality" (Bossert v Ford Motor Co., 140 AD2d 480, 480; see Singer v Riskin, 32 AD3d 839, 840). "[A]ny determination rendered without such substitution will generally be deemed a nullity" (Singer v Riskin, 32 AD3d at 840; see NYCTL 2004-A Trust v Archer, 131 AD3d at 1214; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d at 714).

Here, the deceased defendants died before the plaintiff's motion was made and before the order appealed from was issued. Since a proper substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff's motion, even to the extent that the plaintiff sought relief against other defendants and nonparties (see American Airlines Fed. Credit Union v Costello, 161 AD3d 819, 820; Aurora Bank FSB v Albright, 137 AD3d 1177, 1179; NYCTL 2004-A Trust v Archer, 131 AD3d at 1214). Under the circumstances, the court should have denied that branch of the plaintiff's motion which was for leave to enter a default judgment "on the ground that no substitution had been made" for the deceased defendants (American Airlines Fed. Credit Union v Costello, 161 AD3d at 821; see Aurora Bank FSB v Albright, 137 AD3d at 1179). Accordingly, we affirm the order insofar as appealed from (see generally American Airlines Fed. Credit Union v Costello, 161 AD3d at 821; Aurora Bank FSB v Albright, 137 AD3d at 1179)."