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Appellate Term, Second Department: January 18, 2022

Appellate Term, Second Department: January 18, 2022

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By: Garguilo, P.J., Driscoll, Voutsinas, JJ.

2019-1488 S C. MILDRED B. DEVITO REVOCABLE TRUST v. DEVITO — Appeal from an order of the District Court of Suffolk County, Third District, entered August 8, 2019. By decision and order of this court dated November 18, 2019, on the court’s own motion, this court held the appeal and a motion by appellant seeking a stay pending the determination of the appeal in abeyance so that a hearing could be conducted to determine whether Mildred B. DeVito, who purportedly signed the petition as trustee, is an adult incapable of adequately prosecuting her rights. During the pendency of the appeal, Mildred B. DeVito died and, by decision and order of this court dated December 14, 2020, on the court’s own motion, this court held the appeal and motion in abeyance pending a substitution of another trustee as the petitioner. In a decision & order on motion dated July 27, 2021, the parties to the appeal, or their attorneys, were ordered to show cause before this court why an order should not be made pursuant to CPLR 1021, dismissing the appeal for failure to effect a timely substitution by filing an affidavit or affirmation on that issue with the Clerk of this court on or before August 17, 2021. More than five months have elapsed since the order was issued, and no affidavit or affirmation has been filed. On the court’s own motion it is ORDERED that the appeal is dismissed (see CPLR 1021); and it is further, ORDERED that appellant’s motion is denied as academic. January 13, 2022

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