SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 12, 1968
FRANK ARENA ET AL., RESPONDENTS,
FILOMENA MANGANELLO, AS EXECUTRIX OF RALPH MANGANELLO, DECEASED, ET AL., APPELLANTS
Appeal by defendants from an order of the Supreme Court, Nassau County, dated February 19, 1968, which denied their motion to dismiss the complaint on the ground that it fails to state a cause of action. Appeal dismissed insofar as it purports to be by defendants Prezzano and Gentile, without costs.
Beldock, P. J., Christ, Rabin, Hopkins and Benjamin, JJ., concur.
The time within which said remaining defendants may answer the complaint is extended until 20 days after entry of the order hereon. It appears that prior to the making of the motion presently under review defendant Prezzano died and that after the order appealed from was made, but prior to the taking of the appeal, defendant Gentile died. There has been no substitution for either of these two defendants. Hence the notice of appeal, insofar as it purports to be by them, is void and cannot bring the purported appeal by them before this court; and Special Term lacked jurisdiction to pass on the motion insofar as it was purportedly made by Prezzano (Warren v. Cole, 29 A.D.2d 988; Chimenti v. Hertz Corp., 25 A.D.2d 562; Matter of Huberman v. O'Connell, 282 App. Div. 762).
Order affirmed insofar as it affects the remaining defendants, with $10 costs and disbursements against said defendants.
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