Opinion
October 18, 1971
In a negligence action to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Queens County, dated June 3, 1971, which denied their motion to strike the affirmative defense contained in the answer of defendant Chrysler Leasing Corp., without prejudice to renewal of the motion before the Trial Justice. Appeal by plaintiff Smith dismissed, without costs. Order affirmed as to plaintiffs Barnes, with $10 costs and disbursements. It appearing that plaintiff Smith was deceased at the time the motion was made, and no executor or administrator having yet been substituted as a party plaintiff, the appeal taken in his name must be dismissed (cf. Goldbard v. Kirchik, 20 A.D.2d 725). Rabin, P.J., Hopkins, Munder, Latham and Christ, JJ., concur.