Re v. Ernst & Whinney ( 1997 )

—In a derivative action pursuant to Partnership Law § 115-a, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Westchester County (Silver-man, J.), dated May 15, 1995, which denied their motion to extend their time to comply with a pretrial order for the completion of discovery, and granted the cross motion by the defendants William Weksel and Albert Bromberg, and the cross motion by the defendant Stewart Parness, to dismiss the complaint pursuant to CPLR 3126 due to the plaintiffs’ failure to comply with court-ordered discovery.

Ordered that the appeal by the plaintiff Jane L. Re is dismissed, and it is declared that the order is a nullity as to her; and it is further,

Ordered that the order and judgment is affirmed insofar as reviewed; and it is further,

Ordered that the respondents appearing separately and filing separate briefs are awarded one bill of costs.

The appeal must be dismissed insofar as it was taken on behalf of the plaintiff Jane L. Re. Re died before the order appealed from was issued and, although a personal representative was appointed to represent her estate, there has been no formal substitution of the personal representative as a party to the instant action. Therefore, the order appealed from is a nullity as against Re (see, Macomber v Cipollina, 226 AD2d 435; Oberlander v Levi, 207 AD2d 437, 438).

As to the surviving parties, the order appealed from is affirmed insofar as reviewed. By their repeated refusal to comply with the defendants’ repeated demands for disclosure and the numerous court orders directing disclosure, the plaintiffs exhibited willful and contumacious conduct which warranted dismissal of their complaint (see, Zletz v Wetanson, 67 NY2d 711, 713; Rivers v Embassy Club, 207 AD2d 876, 877; CPLR 3126). Bracken, J. P., O’Brien, Santucci, Friedmann and Gold-stein, JJ., concur.