Opinion
2017–10480 Index No. 11760/14
02-13-2019
U & ME HOMES, LLC, Appellant, v. COUNTY OF SUFFOLK, et al., Defendants, Noyac Hills Estates Association, Inc., Respondent.
Borchert & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert, Edward A. Vincent, and Robert W. Frommer of counsel), for appellant.
Borchert & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert, Edward A. Vincent, and Robert W. Frommer of counsel), for appellant.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff alleged that it is the owner of certain real property (hereinafter the subject property) located in Suffolk County. The plaintiff commenced this action for a judgment declaring that a restrictive covenant on the subject property is invalid and unenforceable. The plaintiff subsequently moved, inter alia, for leave to enter a default judgment against 28 of the named defendants and 5 nonparties. In its motion papers, the plaintiff represented that 2 of the other named defendants had died and, therefore, it moved for leave to amend the caption by, among other things, deleting the names of the deceased defendants.
In an order dated August 23, 2017, the Supreme Court, among other things, denied that branch of the plaintiff's motion which was for leave to enter a default judgment. The court also denied that branch of the plaintiff's motion which was for leave to amend the caption to delete the names of the deceased defendants. The plaintiff appeals. On appeal, the plaintiff's sole contention is that the court erred in denying that branch of its motion which was for leave to enter a default judgment.
"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)" ( NYCTL 2004–A Trust v. Archer, 131 A.D.3d 1213, 1214, 16 N.Y.S.3d 777 ; see JP Morgan Chase Bank, N.A. v. Rosemberg, 90 A.D.3d 713, 714, 934 N.Y.S.2d 346 ; Neuman v. Neumann, 85 A.D.3d 1138, 1139, 926 N.Y.S.2d 632 ). "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" ( Bossert v. Ford Motor Co., 140 A.D.2d 480, 480, 528 N.Y.S.2d 592 ; see Singer v. Riskin, 32 A.D.3d 839, 840, 821 N.Y.S.2d 120 ). "[A]ny determination rendered without such substitution will generally be deemed a nullity" ( Singer v. Riskin, 32 A.D.3d at 840, 821 N.Y.S.2d 120 ; see NYCTL 2004–A Trust v. Archer, 131 A.D.3d at 1214, 16 N.Y.S.3d 777 ; JP Morgan Chase Bank, N.A. v. Rosemberg, 90 A.D.3d at 714, 934 N.Y.S.2d 346 ).
Here, the deceased defendants died before the plaintiff's motion was made and before the order appealed from was issued. Since a proper substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff's motion, even to the extent that the plaintiff sought relief against other defendants and nonparties (see American Airlines Fed. Credit Union v. Costello, 161 A.D.3d 819, 820, 77 N.Y.S.3d 427 ; Aurora Bank FSB v. Albright, 137 A.D.3d 1177, 1179, 29 N.Y.S.3d 394 ; NYCTL 2004–A Trust v. Archer, 131 A.D.3d at 1214, 16 N.Y.S.3d 777 ). Under the circumstances, the court should have denied that branch of the plaintiff's motion which was for leave to enter a default judgment "on the ground that no substitution had been made" for the deceased defendants ( American Airlines Fed. Credit Union v. Costello, 161 A.D.3d at 821, 77 N.Y.S.3d 427 ; see Aurora Bank FSB v. Albright, 137 A.D.3d at 1179, 29 N.Y.S.3d 394 ). Accordingly, we affirm the order insofar as appealed from (see generally American Airlines Fed. Credit Union v. Costello, 161 A.D.3d at 821, 77 N.Y.S.3d 427 ; Aurora Bank FSB v. Albright, 137 A.D.3d at 1179, 29 N.Y.S.3d 394 ).
In light of the foregoing, it is unnecessary to reach the merits of the plaintiff's argument that it was entitled to a default judgment.
BALKIN, J.P., CHAMBERS, COHEN and MILLER, JJ., concur.