Opinion
November 17, 1997
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the appeal is dismissed, with costs, and the order is declared to be a nullity.
An action cannot be maintained against a party who is not a natural or artificial person having legal capacity to be sued ( see, MacAffer v. Boston Me. R. R., 242 App. Div. 140, 144-145, affd 268 N.Y. 400; 59 Am Jur.2d, Parties, § 42; 67A CJS Parties § 41). A proceeding to permanently stay arbitration cannot be brought against the estate of a decedent before the appointment of a legal representative ( see, MacAffer v. Boston Me. R. R., supra). In this case, the decedent died prior to the commencement of this proceeding and a personal representative has not been appointed to represent the estate. Therefore, the order appealed from is a nullity and this Court has no jurisdiction to entertain the appeal ( see, Cooper v. Volk, 157 A.D.2d 766; Bossert v. Ford Motor Co., 140 A.D.2d 480).
Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.