

Gorbaty v Brodsky (2016 NY Slip Op 05792)





Gorbaty v Brodsky


2016 NY Slip Op 05792


Decided on August 17, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 17, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
SHERI S. ROMAN, JJ.


2013-01871
 (Index No. 14970/10)

[*1]Dmitry Gorbaty, appellant, 
vElena Brodsky, etc., defendant-respondent; All Medical Care, LLP, nonparty-respondent.


Dmitry Gorbaty, New York, NY, appellant pro se.

DECISION & ORDER
In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Kings County (Spodek, J.), dated January 4, 2013, which, inter alia, denied his motion pursuant to CPLR 306-b for leave to extend the time to serve the summons and complaint upon a representative of the estate of the defendant and for leave to amend the complaint to add All Medical Care, LLP, as an additional defendant. By decision and order dated June 24, 2015, this Court remitted the matter to the Supreme Court, Kings County, for further proceedings to determine the date of the defendant's death, and the appeal was held in abeyance in the interim (see Gorbaty v Brodsky, 129 AD3d 1023). The Supreme Court, Kings County, has now filed its report.
ORDERED that the appeal is dismissed, without costs or disbursements, the order dated January 4, 2013, is vacated, and the complaint is dismissed.
The death of the defendant prior to the commencement of this action rendered the action a legal nullity from its inception, meaning that the order appealed from is a nullity and that this Court has no jurisdiction to entertain the appeal (see Krysa v Estate of Qyra, 136 AD3d 760; Gorbaty v Brodsky, 129 AD3d 1023, 1024; Rivera v Bruchim, 103 AD3d 700, 700-701). 	Accordingly, we dismiss the appeal, vacate the order appealed from, and dismiss the
complaint.
DILLON, J.P., DICKERSON, CHAMBERS and ROMAN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


