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Penza v. Metropolitan Life Insurance Co.

Supreme Court of New York, Second Department

August 7, 2013

Mary Penza, appellant,
v.
Metropolitan Life Insurance Company, et al., respondents. Index No. 1389/97

Preston & Wilkins, LLC, Levittown, N.Y. (Gregory R. Preston of counsel), for appellant.

Proskauer Rose LLP, New York, N.Y. (Mark A. Saloman and Julianne Apostolopoulos of counsel), for respondent Metropolitan Life Insurance Company.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination in violation of Executive Law § 296, the plaintiff appeals from an order of the Supreme Court, Kings County (Battaglia, J.), dated November 7, 2011, which denied her motion to vacate a stay of the action which had been previously imposed by order of the same court dated June 13, 2011.

ORDERED that the order dated November 7, 2011, is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in staying the action after being informed of the death of the individual defendant, Ottavio D'Elia (see CPLR 1015[a], [b]; Stancu v Cheon Hyang Oh, 74 A.D.3d 1322, 1323; Manto v Cerbone, 71 A.D.3d 1099, 1100). Furthermore, inasmuch as there is no indication that a personal representative had been appointed for the deceased defendant at the time the plaintiff moved to vacate the stay of the action, the court properly denied the plaintiff's motion.

The remaining contentions of the defendant Metropolitan Life Insurance Company are without merit.

ANGIOLILLO, J.P., DICKERSON, SGROI and HINDS-RADIX, JJ., concur.


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