| DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd. |
| 2008 NY Slip Op 04646 [51 AD3d 857] |
| May 20, 2008 |
| Appellate Division, Second Department |
| DLJ Mortgage Capital, Inc., Respondent, v 44 BrushyNeck, Ltd., Appellant, et al., Defendants. |
—[*1] Shapiro & DiCaro, LLP, Rochester, N.Y. (Robert S. Leni of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant 44 Brushy Neck, Ltd., appeals, as limitedby its brief (1) from so much of an order of the Supreme Court, Suffolk County (Whelan, J.),dated October 11, 2006, as granted the plaintiff's motion for summary judgment on thecomplaint, granted the plaintiff's application to discontinue the action insofar as asserted againstthe defendant Walter E. Guldi by virtue of his death during the pendency of the action, anddenied its cross application to stay the action pending the substitution of the representative of theestate of the defendant Walter E. Guldi, (2) from so much of a judgment of the same court datedOctober 11, 2006, as, upon the order dated October 11, 2006, and upon confirming the report of areferee finding that the sum of $1,494,848.61 was due upon a mortgage and promissory note, isin favor of the plaintiff and against it directing a sale of the subject property, and (3) from somuch of an order of the same court dated March 16, 2007, as denied that branch of its motionwhich was, in effect, pursuant to CPLR 5015 (a) (3) to vacate the judgment based upon theplaintiff's misrepresentation of its capacity to commence the action.
Ordered that the appeal from the order dated October 11, 2006 is dismissed; and it is further,
Ordered that the judgment is modified, on the law, by deleting the name Walter E. Guldifrom the caption thereof; as so modified, the judgment is affirmed insofar as appealed from; andit is further,
Ordered that the order dated March 16, 2007 is affirmed insofar as appealed from; and it isfurther,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order dated October 11, 2006 must be dismissed because the right ofdirect appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order datedOctober 11, 2006, are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
The Supreme Court properly permitted the plaintiff to discontinue the action against themortgagor, who died during the pendency of the action. As a general rule, if a cause of actionsurvives the death of a party, such death divests the court of jurisdiction until a duly appointedpersonal representative is substituted for the deceased party (see Matter of Einstoss, 26NY2d 181, 189 [1970]). Nevertheless, "where a party's demise does not affect the merits of acase . . . there is no need for strict adherence to the requirement that the proceedingsbe stayed pending substitution" (Bova v Vinciguerra, 139 AD2d 797, 799 [1988]; see Alaska Seaboard Partners Ltd.Partnership v Grant, 20 AD3d 436, 437 [2005]).
In the instant case, after receiving notice of the mortgagor's death, the plaintiff elected towaive its right to seek a deficiency judgment against the mortgagor and chose to discontinue theaction against him. The rule is that a mortgagor who has made an absolute conveyance of all hisinterest in the mortgaged premises, including his equity of redemption, is not a necessary party toforeclosure, unless a deficiency judgment is sought (see Federal Natl. Mtge. Assn. vConnelly, 84 AD2d 805 [1981]). In a deed recorded in June 2004 the deceased mortgagorduly conveyed all his interest in the subject property to the appellant. Therefore, inasmuch as theplaintiff elected not to seek a deficiency judgment, it was entitled to discontinue the actionagainst the mortgagor and to remove his name from the caption of the action.
The amended caption set forth in the judgment of foreclosure and sale erroneously includedthe deceased mortgagor's name, despite the directive contained in the order dated October 11,2006 that the name be deleted. We therefore modify the judgment to conform the caption to theorder dated October 11, 2006 (see CPLR 5019 [a]; Verdrager v Verdrager, 230AD2d 786, 787 [1996]; Green v Morris, 156 AD2d 331 [1989]; Young v CasabonneBros., 145 AD2d 244, 248 [1989]; Di Prospero v Ford Motor Co., 105 AD2d 479,480 [1984]).
The appellant's remaining contention is without merit. Fisher, J.P., Covello, Angiolillo andBelen, JJ., concur.