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CPLR 1015(a) and the Death of a Party

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  • Posted on: Sep 29 2021

By: Jeffrey M. Haber

Litigation can be a long and drawn-out process. Indeed, it is not uncommon for lawsuits to go on for years before they reach their conclusion. Sometimes during the pendency of a lawsuit, one or more of the parties dies. When that happens, the court is divested of jurisdiction to conduct proceedings in the action until a proper substitution has been made pursuant to CPLR § 1015(a).1 Any order rendered after the death of a party and before the substitution of a legal representative is void.2 

CPLR § 1021 governs the procedure for the substitution of a party, whether due to death or otherwise, and CPLR § 1022 governs the extensions of time necessary to tend to the procedural steps involved with the substitution of a party.

This Blog examined the foregoing principles here.

In Thomas v. Rubin, 2021 N.Y. Slip Op. 05112 (1st Dept. Sept. 28, 2021) (here), the Appellate Division, First Department ruled that it lacked jurisdiction to hear the appeal because there was no substitution for the deceased defendant.

Thomas stemmed from allegations of sexual assault and abuse. The order on appeal concerned Plaintiff’s request to proceed pseudonymously and to prevent Defendants from revealing her identity in the litigation.

Relevant to the appeal, are the following facts. Defendant Ashley Duduk (“Duduk”) appeared in the action by answering the complaint in October 2019. Defendant Howard Rubin Duduk maintained in his brief on appeal that Duduk died in or around July 2020. 

The suggestion of death was apparently the first time a court learned of Duduk’s demise. According to the First Department, the record was devoid of any evidence that Duduk had died. As there was no evidence of Duduk’s death, there was no record that a substitution had been made for her. 

The motion court issued its order, which was entered on March 18, 2021, after Duduk’s death.

Since the motion court’s order was issued after Diduk’s death, the Court dismissed the appeal because it was without jurisdiction: “Since the order was issued after a defendant’s death and without proper substitution, the appeal must be dismissed as we do not have jurisdiction to hear and determine the appeal.”3 

Although not stated, under the authorities discussed herein, since any order rendered after the death of a party and before the substitution of a legal representative is void, then the motion’s court’s order should be a nullity.4 

[Ed. Note: The First Department noted that “[w]ere [the Court] to reach the merits [of the appeal], [it] would agree with Supreme Court.”]5

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.


  1. Singer v. Riskin, 32 A.D.3d 839, 840 (2d Dept. 2006); Faraone v. National Academy of Tel. Arts & Sciences, 296 A.D.2d 349, 350 (1st Dept. 2002),
  2. Cueller v. Betanes Food Corp., 24 A.D.3d 201 (1st Dept. 2005); Bluestein v. City of New York, 280 A.D.2d 506 (2d Dept. 2001).
  3. Slip Op. at *1 (citation omitted).
  4. Bluestein, 280 A.D.2d at 506.
  5. Id.
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