“Under New York law, the estate is a necessary party to a foreclosure action when the mortgagor has died.” U.S. Bank Nat'l Ass'n as Tr. for RMAC Tr., Series 2016, 2022 WL 4451060, at *3. But “where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees, in whom title to the real property automatically vests.” Id. (quoting NRZ Pass-Through Tr. IV v. Tarantola, 192 A.D.3d 819, 821 (2d Dep't 2021) (internal quotation marks omitted)).
see RPAPL § 1311(1) (listing as a necessary defendant “[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein”). “In certain circumstances, the estate of the mortgagor is not a necessary party to a mortgage foreclosure action.” U.S. Bank Trust, N.A. v. Gedeon, 181 A.D.3d 745, 747 (2d Dep't 2020). For example, “‘where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees,' in whom title to the real property automatically vests.” NRZ Pass-Through Trust IV v. Tarantola, 192 A.D.3d 819, 821 (2d Dep't 2021) (quoting U.S. Bank Trust, 181 A.D.3d at 747).
). SED and the Commissioner are necessary parties because the Supreme Court's determination would necessarily determine their rights to set school safety standards and approve plans for school construction (see City of New York v Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475; NRZ Pass-Through Trust IV v Tarantola, 192 A.D.3d 819, 821).
Counsel for CIT and its agent conducted various searches of the Nassau County Surrogate's Court's docket to ensure no will has been filed or probate proceedings held for George W. Fox. (See Decl. in Resp. to Court's Order to Show Cause dated Nov. 18, 2022 (“Decl. in Resp. to OTSC”), Dkt. No. 85 ¶ 8; Surrogate Court Searches, attached as Exs. 5-6 to Decl. in Resp. to OTSC). “[W]here a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees, in whom title to the real property automatically vests.” NRZ Pass-Through Tr. IV v. Tarantola, 192 A.D.3d 819, 821 (2d Dep't 2021) (quotations and citations omitted). CIT submitted a sworn affidavit from Patricia Vivirito, sister of the decedent, identifying George W. Fox's surviving spouse as “Debbie” and his children as Christina Fox Lord and Michael Fox.
See Central Mortg. Co., 53 N.Y.S.3d at 328 (finding that dismissing a plaintiff's claims is an improper remedy for the plaintiff's alleged failure to join a necessary party when foreclosure action was filed against at least one properly named party); NRZ Pass-Through Trust IV v. Tarantola, 144 N.Y.S.3d 196, 198 (N.Y.App.Div. 2021) (finding that dismissal of complaint is not a proper remedy for failure to join a necessary party in foreclosure action).
For example, "'where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees,' in whom title to the real property automatically vests." NRZ Pass-Through Trust IV v. Tarantola. 192 A.D.3d 819, 821 (2d Dep't 2021) (quoting U.S. Bank Trust, 181 A.D.3d at 747).
U.S. Bank Tr., N.A. v. Gedeon, 181 A.D.3d 745, 747, 121 N.Y.S.3d 276, 278 (2d Dep't 2020). For example, “‘where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees,' in whom title to the real property automatically vests.” NRZ Pass-Through Tr. IV v. Tarantola, 192 A.D.3d 819, 821, 144 N.Y.S.3d 196, 198 (2d Dep't 2021) (quoting U.S. Bank Tr., 181 A.D.3d at 747, 121 N.Y.S.3d at 278). Accordingly, where a plaintiff submits evidence that the deceased mortgagor died intestate and is not seeking a deficiency judgment, courts have found that the estate is not a necessary party.
Particularly where, as here, the plaintiff seeks a deficiency judgment, and alleges a default in payment subsequent to the death of the deceased mortgagor, the estate of the mortgagor is a necessary party to the foreclosure action (see id. at 747). However, dismissal of the complaint was not the proper remedy; rather, the proper remedy was to direct the joinder of the estate as a defendant (see CPLR 1001[b]; NRZ Pass-Through Trust IV v Tarantola, 192 AD3d 819; Blatt v Johar, 177 AD3d 634, 636).
[and] the factors mentioned in CPLR 1001 (b) [must] tip overwhelmingly in favor of dismissal" (JPMorgan Chase Bank, Natl. Assn, v Salvage, 171 A.D.3d 438, 439 [1st Dept 2019]). In the absence of such a party, the preferred remedy is joinder of the missing party (see NRZ Pass-Through Trust IV v Tarantola, 192 A.D.3d 819 [2d Dept 2021]). Here, Defendants have not pled which parties are absent and why they are indispensable.
[and] the factors mentioned in CPLR 1001 (b) [must] tip overwhelmingly in favor of dismissal" (JPMorgan Chase Bank, Natl. Assn, vSalvage, 171 A.D.3d 438, 439 [1st Dept 2019]). In the absence of such a party, the preferred remedy is joinder of the missing party (see NRZ Pass-Through Trust IV v Tarantola, 192 A.D.3d 819 [2d Dept 2021]).