Kurtz v. Hughes ( 1977 )

Appeal by plaintiffs from an order of Supreme Court, New York County, entered January 15, 1976, dismissing the complaint on the ground of another action pending and from the judgment of said court entered thereon on March 16, 1976, unanimously severed as to defendant-respondent Howard R. Hughes and the appeal as to said defendant shall be held in abeyance for a period of four months from the date of the entry of the order herein. Except as to defendant Hughes, said order and said judgment are unanimously affirmed on the opinion of Spiegel, J., at Special Term, without costs and without disbursements. By reason of the death of defendant-respondent Howard R. Hughes after entry of the judgment herein and prior to the submission of the appeal, this court may not proceed to a determination of the appeal on the merits as to said respondent (CPLR 1021; Gutwein v Ungar Mgt., 44 AD2d 800; Schweers v Schweers, 39 AD2d 679). Application for substitution of the executor or administrator for said decedent shall be made at Special Term, New York County. If a personal representative shall not have been appointed and substituted for said deceased party within four months, the appeal will be dismissed as to defendant-respondent Hughes (CPLR 1021; Schweers v Schweers, supra). Concur—Lupiano, J. P., Birns, Lane and Nunez, JJ.