| Neuman v Neumann |
| 2011 NY Slip Op 05681 [85 AD3d 1138] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Gerson Neuman et al., Respondents, v David Neumann etal., Defendants, and Sterling Empire Funding Associates, Ltd.,Appellant. |
—[*1] Scheinert & Kobb, LLC, Nanuet, N.Y. (Joel L. Scheinert of counsel), forrespondents.
In an action, inter alia, to set aside a conveyance and five mortgages on the ground of fraud,and to recover damages, among other things, for fraud and conversion, the defendant SterlingEmpire Funding Associates, Ltd., appeals, by permission, from an order of the Supreme Court,Rockland County (Weiner, J.), dated March 8, 2011, which denied its application pursuant toCPLR 1015 (a) to stay the action pending the substitution of a personal representative for thedeceased plaintiff Nandor Neumann. By decision and order dated April 6, 2011, this Court stayedthe proceedings in the above entitled action pending hearing and determination of this appeal.
Ordered that the order is reversed, on the law, without costs or disbursements, and theapplication of the defendant Sterling Empire Funding Associates, Ltd., to stay the action pendingthe substitution of a personal representative for the deceased plaintiff Nandor Neumann isgranted.
The plaintiff Gerson Neuman and his father, the plaintiff Nandor Neumann, commenced thisaction, alleging that they were the victims of a fraudulent scheme which divested them ofownership of real property located in Monsey, and encumbered the property with five mortgages.The complaint alleges that, prior to the acts of fraud committed by the three individualdefendants in this action, Gerson Neuman was the record owner of the subject property, andNandor Neumann was the holder of a life estate. The complaint contains six causes of actionwhich seek, inter alia, to set aside the allegedly fraudulent conveyance and mortgages, and anadditional eight causes of action which seek to recover both compensatory and punitive damagesfrom the individual defendants on theories, inter alia, of fraud and conversion. At some pointafter the commencement of the action, Nandor Neumann died. Shortly before a trial wasscheduled to commence, Sterling Empire Funding Associates, Ltd. (hereinafter Sterling), one ofthe mortgagee defendants in the action, made an application pursuant to CPLR 1015 (a) to staythe action pending the substitution of a personal representative for the deceased plaintiff. TheSupreme Court denied the motion, concluding that substitution was unnecessary by virtue ofCPLR 1015 (b). We reverse.
Generally, the death of a party divests a court of jurisdiction to act, and automatically staysproceedings in the action pending the substitution of a personal representative for the decedent(see Stancu v Cheon Hyang Oh, 74AD3d 1322, 1323 [2010]; Manto vCerbone, 71 AD3d 1099, 1100 [2010]; [*2]Wood v Dolloff, 52 AD3d 1190[2008]; Abley Props., Inc. v Reid,52 AD3d 442, 443 [2008]; Singer vRiskin, 32 AD3d 839, 840 [2006]; Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069 [2005];Noriega v Presbyterian Hosp. in City of N.Y., 305 AD2d 220, 221 [2003]; Gonzalezv Ford Motor Co., 295 AD2d 474, 475 [2002]). However, where the causes of actionasserted on behalf of a deceased plaintiff survive only to a coplaintiff, the action may proceedwithout a substitution, and with the decedent's death merely noted on the record (seeCPLR 1015 [a]; Paterno v CYC,LLC, 46 AD3d 788 [2007]; Bova v Vinciguerra, 139 AD2d 797, 799 [1988]).Here, although the complaint sets forth causes of action which survive only to the plaintiffGerson Neuman as the title owner of the subject property, it also contains causes of action,asserted on behalf of both plaintiffs, which seek compensatory and punitive damages. Thedecedent's right to recover monetary damages for the alleged injury to his property interest as alife tenant was not extinguished by his death (see EPTL 11-3.2 [b]; Dailey v NorthernN.Y. Util., Inc., 129 Misc 183, 188 [1927]), and does not survive only to the remainingplaintiff Gerson Neuman (cf. Paterno v CYC, LLC, 46 AD3d at 789; Bova vVinciguerra, 139 AD2d at 798-799), but must be prosecuted on behalf of the beneficiaries ofhis estate. Under these circumstances, the action may not proceed until there has been asubstitution of a personal representative for the decedent.
Sterling's remaining contention is without merit. Prudenti, P.J., Eng, Hall and Lott, JJ.,concur.