| Glass v Estate of Gold |
| 2008 NY Slip Op 01707 [48 AD3d 746] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Samuel I. Glass, Respondent, v Estate of Harry N. Gold,Also Known as Numan Gold, et al., Defendants, and Dan R. Gold,Appellant. |
—[*1] Samuel I. Glass, Hempstead, N.Y. (Glen Wurzell of counsel), respondent pro se.
In an action to foreclose a mortgage, the defendant Dan R. Gold, appeals, as limited by hisbrief, from so much of a judgment of the Supreme Court, Suffolk County (Emerson, J.), enteredSeptember 19, 2005, as, upon an order of the same court dated June 16, 2005, denying his motionto dismiss the complaint pursuant to CPLR 3211 (a) (10) for failure to join a necessary party, andupon confirming the report of a referee finding that the sum of $334,393.01 was due upon amortgage and promissory note, is in favor of the plaintiff and against him directing a foreclosureand sale of the subject property.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage after the mortgagor Harry N.Gold died intestate and the mortgage went into default. The plaintiff named as defendants, andserved, the mortgagor's widow, who had been appointed administrator of the decedent's estate,and several of his children. None of these defendants answered the complaint. After the refereerendered her report, the appellant, the decedent's son, moved to dismiss the complaint for failureto name his sister as a necessary party. The Supreme Court denied the motion, holding that thedecedent mortgagor's heirs were not necessary parties where the administrator was named as aparty defendant. The appellant appeals from so much of the judgment of foreclosure and sale asdirected a foreclosure and sale of the subject property.[*2]
The Supreme Court properly denied the appellant'smotion to dismiss the complaint pursuant to CPLR 3211 (a) (10) for failure to join a necessaryparty, namely, Lorraine Bowen, the deceased mortgagor's daughter. Even if Lorraine Bowen werea necessary party, she was not an indispensable party whose absence mandates dismissal of thecomplaint (see CPLR 1001 [b]; Polish Natl. Alliance of Brooklyn v White Eagle HallCo., 98 AD2d 400, 406 [1983]). The absence of a necessary party in a mortgage foreclosureaction simply leaves that party's rights unaffected by the judgment of foreclosure and sale (seeScharaga v Schwartzberg, 149 AD2d 578, 579-580 [1989]; Polish Natl. Alliance ofBrooklyn v White Eagle Hall Co., 98 AD2d at 406).
The appellant's remaining contentions are improperly raised for the first time on appeal(see Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757 [1985]). Spolzino,J.P., Florio, Miller and Dickerson, JJ., concur.