Recitation in accordance with CPLR 2219 of the papers considered on the notice of motion filed on December 20, 2023, under motion sequence number one, by the plaintiff's prior [*2]counsel ^[FN1] (hereinafter the movant) for an order substituting Greta Charles as plaintiff instead and in place of Eric C. Charles. The motion is unopposed.

Exhibits A-C

On January 18, 2022, plaintiff Eric C. Charles, commenced the instant action for damages for personal injury allegedly sustained in a motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk's office KCCO). On July 20, 2022, defendants Maruf Shukurov and Andrei Maldashou interposed and filed a joint verified answer.

Steven Grossman Esq, an associate of the law firm of Mallilo & Grossman (hereinafter Grossman) submitted an affirmation in support of the motion. He averred that the firm of Mallilo & Grossman are the attorneys for the plaintiff. Grossman referred to three annexed exhibits labeled A through C. Exhibit A is a copy of the pleadings in the instant action. Exhibit B is the death certificate for Eric C. Charles and the letters administration appointing Greta Charles as administrator of the estate of Eric C. Charles. Exhibit C is an affidavit of Greta Charles consenting to the instant motion to substitute her as plaintiff instead of Eric C. Charles.

The movant's evidentiary submission establishes that Eric C. Charles passed away on April 8, 2022, and that on November 21, 2023, Greta Charles was given letters of administration for his estate. "The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015 (a)" (Medlock v Dr. William O. Benenson Rehabilitation Pavilion, 167 AD3d 994, 995 [2d Dept. 2018], quoting Vapnersh v Tabak, 131 AD3d 472, 473 [2015]). "If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties" (CPLR 1015 [a]).

"Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent" (Aurora Bank FSB v Albright, 137 AD3d 1177, 1178 [2d Dept 2016], quoting NYCTL 2004-A Trust v Archer, 131 AD3d 1213, 1214 [2d Dept 2015]; see CPLR 1015; 1021). "Furthermore, the death of a party terminates the authority of the attorney for that person to act on his or her behalf" (Aurora Bank FSB, 137 AD3d at 1178, quoting Hy man v Booth Mem. Hosp., 306 AD2d 438, 438 [2d Dept 2003]). CPLR 1021 "creates an exception to the court's lack of jurisdiction to the extent of permitting a motion for substitution and, conversely, a motion for dismissal for failure to make timely substitution" (Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR 1021:2).

Here, the notice of motion was made by plaintiff's prior counsel. The movant's authority to act on behalf of the plaintiff terminated on the date of the death of Eric C. Charles (see Aurora Bank FSB, 137 AD3d at 1178). Accordingly, the movant has no standing to make the instant [*3]motion.

Furthermore, when a motion for substitution is made by a party other than the estate of the decedent, the motion papers must be served on the decedent's personal representative with all the formalities that CPLR article 3 prescribes for service of process (Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2d Dept 2008]; see GMAC Mtge. Corp. v Tuck, 299 AD2d 315, 316 [2d Dept 2002]).

Greta Charles submitted her own affidavit consenting to the motion seeking to replace the decedent with her as his administrator. Her affidavit undisputedly establishes she had in effect consented to the Court's personal jurisdiction over her and that she waived any objection to the failure to serve the notice of motion upon her. Moreover, the defendants did not oppose the motion.

Under these circumstances, the Court deems the movant to have been acting on behalf of Greta Charles. Greta Charles retained the law firm of Mallilo & Grossman to continue to prosecute the action. The NYSCEF filed documents, however, do not reflect that the law firm of Mallilo & Grossman is appearing as attorney of record for Greta Charles. This should be clarified. The attorneys for Greta Charles are directed to file a notice of appearance with the Kings County Clerk's office within twenty days of entry of the instant order.

The motion is granted. The automatic stay imposed by CPLR 1015 is lifted. The new caption is as follows.

           ;                                 Plaintiff,

           -against-

         & nbsp;           & nbsp;           & nbsp;       Defendants.

The motion by the deceased plaintiff's prior counsel for an order substituting Greta Charles as plaintiff instead and in place of Eric C. Charles is granted.