Opinion
965 CA 22-00002
02-10-2023
CITIBANK, N.A., Not in Its Individual Capacity, but Solely AS TRUSTEE OF NRZ PASS-THROUGH TRUST VI, Plaintiff-Respondent, v. Arthur BAILEY, as Heir to the Estate of David B. Bailey, Defendant-Appellant, et al., Defendants.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (KYLE C. DIDONE OF COUNSEL), FOR DEFENDANT-APPELLANT. ROACH & LIN, P.C., SYOSSET (EDWARD RUGINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (KYLE C. DIDONE OF COUNSEL), FOR DEFENDANT-APPELLANT.
ROACH & LIN, P.C., SYOSSET (EDWARD RUGINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted insofar as it sought dismissal of the amended complaint against defendant Arthur Bailey, as heir to the estate of David B. Bailey, and the amended complaint against that defendant is dismissed.
Memorandum: Plaintiff commenced this mortgage foreclosure action in January 2020 against, as relevant on appeal, the mortgagor, David B. Bailey (decedent), and certain "John Does" and "Jane Does" defined in the complaint as "the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint." Plaintiff subsequently discovered that decedent had died in 2018 and made an ex parte application seeking, among other things, to substitute Arthur Bailey, in his capacity as heir to decedent's estate (defendant), as a John Doe defendant and for leave to file an amended complaint. That application was granted in May 2021 and plaintiff subsequently filed and served an amended complaint on defendant. Defendant now appeals from an order that, inter alia, denied his motion insofar as it sought to dismiss the amended complaint against him.
We agree with defendant that his motion should be granted insofar as it seeks dismissal of the amended complaint against him. Defendant correctly contends that he was improperly substituted as John Doe #1 pursuant to CPLR 1024. Inasmuch as the original complaint "fail[ed] to mention decedent's death" and defendant is being sued in the amended complaint in his capacity as an heir to decedent's estate, defendant does not fit within the categories of John and Jane Does set forth in the original complaint and thus cannot be substituted therefor ( Wendover Fin. Servs. v. Ridgeway , 93 A.D.3d 1156, 1157-1158, 940 N.Y.S.2d 391 [4th Dept. 2012] ). Further, although here plaintiff also filed and served an amended complaint on defendant solely in his capacity as heir to decedent's estate and not as a representative thereof (cf. id. at 1157, 940 N.Y.S.2d 391 ; see generally EPTL 3-3.6 [a], [b] ; U.S. Bank Trust N.A. v. Gedeon , 181 A.D.3d 745, 747, 121 N.Y.S.3d 276 [2d Dept. 2020] ), we agree with defendant that the relevant statute of limitations expired prior to the order granting plaintiff's ex parte application for leave to file the amended complaint (see generally CPLR 213 [4] ). We reject plaintiff's contention that defendant lacks standing to assert a statute of limitations defense (see U.S. Bank N.A. v. Balderston , 163 A.D.3d 1482, 1483, 83 N.Y.S.3d 382 [4th Dept. 2018] ). With respect to the merits of that defense, there is no dispute that the statute of limitations began to run no later than November 19, 2014, when plaintiff's predecessor-in-interest commenced an earlier mortgage foreclosure action against, inter alia, decedent that was ultimately dismissed on the motion of the defendants (see CPLR 213 [4] ; Business Loan Ctr., Inc. v. Wagner , 31 A.D.3d 1122, 1123, 818 N.Y.S.2d 406 [4th Dept. 2006] ; see generally Freedom Mtge. Corp. v. Engel , 37 N.Y.3d 1, 19, 21, 146 N.Y.S.3d 542, 169 N.E.3d 912 [2021], rearg denied 37 N.Y.3d 926, 146 N.Y.S.3d 865, 169 N.E.3d 1229 [2021] ). Thus, as defendant correctly contends, the six-year statute of limitations expired prior to both the order granting plaintiff's application to amend the complaint and its filing and service of the same on defendant. Supreme Court therefore should have granted defendant's motion insofar as it sought to dismiss the amended complaint against defendant.