Samuel Gutwein et al., Respondents, v. Ungar Management Inc., et al., Defendants, and Sidney J. Ungar et al., Appellants

Samuel Gutwein et al., Respondents, v. Ungar Management Inc., et al., Defendants, and Sidney J. Ungar et al., Appellants. [MAJORITY] Appeal by defendant Sidney J. Ungar from an order of Supreme Court, New York County, entered December 28, 1972 denying his motion to dismiss certain causes of action in the complaint, and appeal by defendant Sylvia B. Teichner from an order of Supreme Court, New York County, entered on July 3, 1973, denying said defendant’s motion to dismiss the fifth cause of action in the complaint, shall be held in abeyance for a period of four months from the date of the entry of the order herein. Both appellants appear by the same attorney and one record on appeal has been filed. By reason of the death of defendant-appellant Sidney J. Ungar during the interim between service of the notices of appeal and the submission to this court of the appeals on April 26, 1974, this court may not proceed to a determination of the appeals on the merits. (CPLR 1021; Schweers v. Schweers, 39 A D 2d 679; Thompson v. Raymond Kramer, Inc., 23 A D 2d 746; Price v. Booth, 21 A D 2d 680.) Application for substitution of the executor or administrator for said deceased Sidney J. Ungar should be made at Special Term, New York County. If a personal representative shall not have been appointed and substituted for said deceased party within four months, application should be made pursuant to CPLR 1021 for a dismissal of the appeals. Concur — Markewich, J. P., Murphy, Lupiano, Steuer and Lane, JJ.