Brogan v. Mary Immaculate Hospital Division of Catholic Medical Center of Brooklyn & Queens, Inc.
Court: Appellate Division of the Supreme Court of the State of New York; November 27, 1994; New York; State Appellate Court
In a medical malpractice case, the defendants appeal a portion of a February 5, 1993 order from the Supreme Court, Queens County, which granted the plaintiffs' motions to: (1) substitute Mary Brogan as the executrix for the deceased Robert Brogan, (2) vacate a May 23, 1991 order that dismissed the action and the associated judgment, and (3) restore the case to the trial calendar. The appellate court affirms the order, citing that the dismissal was improper as Robert Brogan had died, and no proper substitution had been made at that time. It is established law that a party's death removes the court's jurisdiction until a substitution occurs, rendering any judgment without substitution void. Additionally, it is noted that the plaintiffs' counsel had been disbarred due to federal racketeering and conspiracy convictions, which further justified vacating the dismissal under CPLR 321(c). The remaining arguments from the appellants were deemed either unpreserved for review or without merit. The decision was concurred by Justices Ritter, Santucci, Friedmann, and Goldstein.