Balestra v. Donohue

In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated August 30, 1995, as denied his cross motion to vacate an award of interim counsel fees to the deceased wife, and for summary judgment dismissing the counterclaims of the deceased wife. Ordered that the appeal is dismissed, without costs or disbursements. The appellant’s wife died before he made his cross motion and before the issuance of the order denying that cross motion. There was no effective substitution prior to the issuance of that order as required by CPLR 1015. Thus, the provision of the order appealed from is a nullity, and this Court has no jurisdiction to entertain the appeal (see, Wilson v Rosen, 166 [238] AD2d 441; Cooper v Volk, 157 AD2d 766). Copertino, J. P., Sullivan, Friedmann and Goldstein, JJ., concur.