Opinion
June 15, 1987
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that so much of the appeal from the order dated May 18, 1986, as denied the plaintiff's motion for reargument, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated April 29, 1986, is modified, on the law, by deleting the provision denying that branch of the plaintiff's motion which was to dismiss Homemakers' counterclaim, and substituting therefor a provision granting that branch of the plaintiff's motion; as so modified, the order dated April 29, 1986, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated May 18, 1986, is modified, on the law, by deleting from the first decretal paragraph thereof the provision granting Homemakers' judgment on its counterclaim in the principal amount of $8,834.37, and substituting therefor a provision granting the plaintiff's motion to dismiss the counterclaim; as so modified, the order dated May 18, 1986, is affirmed insofar as appealed from, without costs or disbursements.
The gravamen of the plaintiff's complaint is that the decedent, Jane Williams, received nursing services from Homemakers (trading as Upjohn Healthcare Services), a franchisee of the defendant Upjohn Company, Inc. It is alleged, however, that the decedent believed she was receiving nursing services from the Upjohn Company, Inc. According to the plaintiff, Williams was damaged because she allegedly paid more for nursing services in reliance upon the Upjohn name which were of no greater quality than those supplied by other, less expensive nursing services. The plaintiff's attorney conceded at oral argument, however, that there is no claim made that the nursing services rendered were in any respect deficient. Nor does the complaint contain any allegations that the services rendered failed to meet any promised level of quality. To support the contention that Jane Williams incurred damages for which the defendants are liable, a document was submitted which indicated that during the time period in question Homemakers was charging a rate for its nursing services which was above the average rate charged by other nursing services. At best, this document merely indicates that other nursing services were available at a lower cost and fails to support the plaintiff's contention that Jane Williams suffered damage to which any alleged act or omission of the defendants contributed. In light of the foregoing, we conclude that the court properly dismissed the complaint as to all of the defendants (cf., Williams v Upjohn Health Care Servs., 120 A.D.2d 729; see, CPLR 3212 [b]).
However, the plaintiff's motion to dismiss Homemakers' counterclaim should have been granted. Homemakers served the counterclaim for services rendered on Jane Williams' former attorney after Williams' death, but before her personal representative had been substituted and had retained counsel. The death of a party terminates the attorney's authority to act on her behalf (see, Hemphill v Rock, 87 A.D.2d 836; Wisdom v Wisdom, 111 A.D.2d 13), and divests a court of jurisdiction to conduct proceedings in the action until a proper substitution has been made pursuant to CPLR 1015 (a) (see, Silvagnoli v Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819; Byrd v Johnson, 67 A.D.2d 992). Homemakers conceded that its service of the counterclaim was ineffective, and re-served the counterclaim on the attorney for the personal representative 68 days after Homemakers' claim against the estate for the same services alleged in the counterclaim had been rejected. As Homemakers has not complied with the 60-day "short Statute of Limitations" of SCPA 1810 (Braloff v Greenberg, 284 App. Div. 105 4), the claim for the services in question must be determined as part of the judicial settlement of the decedent's estate.
We have considered the plaintiff's other contentions and find them to be either academic in light of the instant decision or without merit. Bracken, J.P., Niehoff, Kooper and Sullivan, JJ., concur.