Opinion
No. 5218/13.
07-30-2014
WELLS FARGO BANK, N.A., Plaintiff, v. Heidi SPIVAK, individually and on behalf of the Estate of the Late Rudolph Grotzer a/k/a Rudolph M. Grotzer; Erika Strum; Tina Grotzer; Curt Grotzer; Michael Grotzer, if he be Living or if he be Dead, his Spouse, heirs, Devisees, Distributees and Successors in Interest, All of Whom and Whose Names and Places of Residence are Unknown to Plaintiff; Christopher Grotzer; Any Unknown Heirs, Devisees, Distributees or Successors in Interest of the Late Rudolph Grotzer a/k/a Rudolph M. Grotzer, if they be Living or, if they be Dead, Their Spouses, Heirs, Devisees, Distributees and Successors in interest, All of Whom and Whose Names and Places of Residences are Unknown to the Plaintiff; United States of America, Acting Though the Secretary of Housing and Urban Development; State of New York, and “John Doe”, Said Name Being Fictitious, It Being the Intention of Plaintiff to Designate Any and All Occupants of Premises Being Foreclosed Herein, And Any Parties, Corporations or Entities, If Any, Having or Claiming An Interest or Lien upon the Mortgaged Premises, Defendants.
Frank M. Cassara, Esq., Shapiro, Dicaro & Barak, LLC, Rochester, Attorneys for Plaintiff.
Frank M. Cassara, Esq., Shapiro, Dicaro & Barak, LLC, Rochester, Attorneys for Plaintiff.
Opinion
JAMES D. PAGONES, J.
Plaintiff, by ex parte application, seeks an order: (1) substituting the Estate of Rudolph Grotzer a/k/a Rudolph M. Grotzer for the above captioned unknown defendants; (2) appointing a temporary administrator; and, (3) extending the time to serve and file the affidavits of service upon the temporary administrator.
The following papers were read:Proposed Order to Appoint–Affirmation–1–8
Exhibits A–F
Upon the foregoing papers the application is decided as follows:
Plaintiff commenced this action or about August 22, 2013 to foreclose on real property known as 291 East Fallkill Road, Hyde Park, New York 12538. On January 22, 2013, Rudolph Grotzer a/k/a Rudolph M. Grotzer died. Mr. Grotzer was the original owner of record and original obligor under the note securing the mortgage. Plaintiff states that “[a] Dutchess County Surrogate Court search was conducted on August 1, 2013 which revealed that neither Letters Testamentary nor Administration was rendered relative to the Rudolph Grotzer a/k/a Rudolph M. Grotzer estate'.”
It is not proper to attempt to appoint a temporary estate administrator to avoid the appointment of an executor or other fiduciary by the Surrogate Court for the sole purpose of commencing a lawsuit for the foreclosure of a mortgage given by a deceased mortgagor (see Central Mortg. Co. v. Walter, 2008 N.Y. Slip Op 30159[U], 2008 WL 219165 [Sup Ct, Suffolk County 2008]citing to Salomon Bros. Realty Corp. v. Alvarez, 22 AD3d 482 [2nd Dept 2005] ; First Union Nat. Bank v. Estate of Bailey, 7 Misc.3d 1027[A] [Sup Ct, Kings County 2005] ).Plaintiff's ability to collect on its debt is not foreclosed as plaintiff may commence a proceeding for the appointment of an administrator in Surrogate's Court pursuant to SCPA § 1001 et seq. (see First Union Nat. Bank v. Estate of Bailey, 7 Misc.3d 1027[A] [Sup Ct, Kings County 2005] ).
Based upon the foregoing, plaintiff's motion is denied in its entirety.
This constitutes the decision and order of the Court.