Ordered that the appeal is dismissed, without costs or disbursements.
It appears from the brief submitted by the plaintiff's counsel that the plaintiff died on November 13, 1984. It further appears that no substitution has taken place as required by CPLR 1015. Under these circumstances, the order appealed from is a nullity and this court has no jurisdiction to hear and determine the instant appeal (see, Muth v Benjamin, 109 A.D.2d 736).
We note however, that were the appeal properly before us, we would affirm for reasons stated by Trial Term. Mollen, P.J., Mangano, Niehoff and Rubin, JJ., concur.