Opinion
No. 12163/08.
08-18-2016
SOUTHSTAR, LLC, Plaintiff, v. Shonda SMITH, Individually and as Surviving Joint Tenant of Linda Gill a/k/a Linda L. Gill a/k/a Linda Loraine Gill, Argent Mortgage Company, LLC, HArvey M. Kraus, Midland Funding NCC–2 Corp., Mortgage Electronic Registration Systems, Inc. as Nominee Fr Greenpoint Mortgage Funding, Inc., New York City Department of Finance, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, People of the State of New York, United States of America Acting Through the IRS, Defendants.
Knuckles, Komosinski and Elliott, Elmsford, attorney for the plaintiff. Abraham Hoschander, Brooklyn, attorney for the defendant Shonda Smith.
Knuckles, Komosinski and Elliott, Elmsford, attorney for the plaintiff.
Abraham Hoschander, Brooklyn, attorney for the defendant Shonda Smith.
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the Notice of Motion filed on February 5, 2016, by U.S. Bank National Association, as Trustee on behalf of Merrill Lynch Mortgage Investors Trust Series 2010–NP1 (hereinafter the USBNA or the movant) for an order lifting the stay imposed by the death of Linda Gill.
Notice of motion
Affirmation in support
Exhibits A–H
Affirmation in opposition
Affirmation in reply
Exhibits 1–9
BACKGROUND
On April 17, 2008, Southstar, LLC, commenced the instant mortgage foreclosure action by filing a summons, complaint and notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office. The instant action is to foreclose a mortgage on certain real property situated in the County of Kings, State of New York at 1519 East New York Avenue, Brooklyn, New York 11212 (Block 1465 Lot 39) (hereinafter the subject property).
By order dated July 7, 2009, the Court granted Southstar, LLC's motion for, among other things, an order of reference (hereinafter the July 2009 motion). On January 19, 2009, defendant Linda Gill passed away.
By order dated March 25, 2011, the Court granted Southstar, LLC's motion for, among other things, an order granting leave to amend the complaint (hereinafter the March 2011 order).
By Notice of Motion filed on November 9, 2012 and returnable December 14, 2012, USBNA moved for an order confirming the referee's report, granting a judgment of foreclosure and sale, and amending the caption.
By order dated December 14, 2012, the Court directed USBNA to bring proof of Linda Gill's death to the Court on January 11, 2013 (hereinafter the December 2012 order).
By decision and order dated June 28, 2013, the Court denied USBNA's motion filed on November 9, 2012 and stayed the proceeding based on its failure to comply with the December 2012 order. The stay was to remain until such time as USBNA presented proof of Linda Gill's death.
On February 7, 2014, USBNA presented the Court with proof of Linda Gill's death. By order issued that day, the Court issued an order staying all proceedings pursuant to CPLR 1015(a) until such time as proper substitution of the Linda Gill's estate was effectuated or until a showing was made that the automatic stay provisions of CPLR 1015(a) was not applicable.
LAW AND APPLICATION
“Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent pursuant to CPLR 1015(a) ” (Aurora Bank FSB v. Albright, 137 AD3d 1177 [2nd Dept 2016]citing NYCTL 2004–A Trust v. Archer, 131 AD3d 1213, 1214 [2nd Dept 2013] ). Any determination rendered without such a substitution will generally be deemed a ity (Aurora Bank FSB v. Albright, 137 AD3d 1177 [2nd Dept 2016]citing Singer v. Riskin, 32 AD3d 839 at 840 [2nd Dept 2006] ). “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction” over the deceased party's personal representative, and such a motion “is not a mere technicality” (Aurora Bank FSB v. Albright, 137 AD3d 1177 [2nd Dept 2016]citing Bossert v. Ford Motor Co., 140 A.D.2d 480 [2nd Dept 1988] ). “In most instances a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate” (U.S. Bank N.A. v. Esses, 132 AD3d 847 [2nd Dept 2015]citing Lambert v. Estren, 126 AD3d 942, at 943 [2nd Dept 2015).
However, where a party's demise does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution (U.S. Bank N.A. v. Esses, 132 AD3d 847 [2nd Dept 2015]citing DLJ Mtge. Capital, Inc. v. 44 Brushy Neck, Ltd., 51 AD3d 857, 858 [2nd 2008] ). In the context of a mortgage foreclosure action, where a deceased defendant made an absolute conveyance of all his or her interest in the mortgaged premises to another defendant, including his or her equity of redemption, and the plaintiff either discontinued the action as against the deceased defendant or elected not to seek a deficiency judgment against the deceased defendant's estate, then the deceased defendant is not a necessary party to the action (U.S. Bank N.A. v. Esses, 132 AD3d 847 [2nd Dept 2015]citing HSBC Bank USA v. Ungar Family Realty Corp., 111 AD3d 673 [2nd Dept 2013] ; Bank of N.Y. Mellon Trust Co. v. Ungar Family Realty Corp., 111 AD3d 657 [2nd Dept 2013] ).
The July 2009 motion for an order of reference filed with the Kings County Clerk's office included, among other things, an affidavit of service reflecting that the commencement were personally delivered to Linda Gill on May 3, 2008.
The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v. Otto N. Williams, 17 Misc.3d 1127[A] [NY Sup.2007]citing Matter of Khatibi v. Weill, 8 AD3d 485 [2nd Dept 2004] ).
The death of Linda Gill on January 19, 2009 resulted in an automatic stay of all proceedings in the instant action pending the substitution of the representative of her estate pursuant to CPLR 1015(a) ” (Aurora Bank FSB v. Albright, 137 AD3d 1177 [2nd Dept 2016] ). Inasmuch as no action was taken to substitute the legal representative of her the estate, all orders determining any motion filed after January 9, 2009 are ities (Aurora Bank FSB v. Albright, 137 AD3d 1177 [2nd Dept 2016]citing Singer v. Riskin, 32 AD3d 839 at 840 [2nd Dept 2006] ).
USBNA claims that the automatic stay provisions of CPLR 1015(a) should not apply in this instant action because Linda Gill owned the subject property with defendant Shonda Smith as joint tenants with rights of survivorship, as reflected by a deed date March 13, 2007. USBNA further contends that all of Linda Gill's interest in the subject property passed by operation of law to Shonda Smith who was already a named defendant in the action.
USBNA annexed a copy of the complaint as amended pursuant to the March 2011 order but did not annex a copy of the original commencement papers to its motion. The July 7, 2009 order granting Southstar, LLC's motion for, among other things, an order of reference and the March 25, 2011 order granting Southstar LLC's motion to amend the complaint are both ities (Id. ).
USBNA contends that Linda Gill's demise does not affect the merits of its action and that there is no need for strict adherence to the requirements that the proceedings be stayed pending substitution because Shonda Smith, as the surviving joint tenant, automatically inherited the subject property from Linda Gill.
USBNA's moving papers made no mention of whether it had discontinued the action against Linda Gill or whether it intended to seek a deficiency judgment against her estate. After receiving Shonda Smith's opposition to its motion, USBNA made a passing reference in paragraph thirty two of its reply affirmation that it had discontinued the action against Linda Gill and that it would not seek a deficiency judgment against her estate. USBNA, however, presented no evidence showing that it had previously moved for, or received an order granting leave to discontinue the action against Linda Gill. To the contrary, the proposed amended complaint that USBNA submitted to the Court in its motion for leave to amend the complaint, and which yielded the March 2011 order granting the amendment, included Linda Gill as a defendant.
USBNA has moved to lift the automatic stay caused by Linda Gill's death pursuant to CPLR 1015(a) without moving to substitute a representative for Linda Gill's estate as a defendant (see CPLR 1021 ), without discontinuing the action insofar as asserted against Linda Gill, and without representing that it would not seek a deficiency judgment against Gill's estate. Therefore, in accordance with the reasoning set forth in the matter of U.S. Bank N.A. v. Esses, 132 AD3d 847 [2nd Dept 2015], USBNA's motion is denied without prejudice.
CONCLUSION
U.S. Bank National Association, as Trustee on behalf of Merrill Lynch Mortgage Investors Trust Series 2010–NP1's motion for an order lifting the stay imposed by the death of Linda Gill pursuant to CPLR 1015(a) is denied without prejudice.
The foregoing constitutes the decision and order of this Court.