| HSBC Bank USA v Ungar Family Realty Corp. |
| 2013 NY Slip Op 07451 [111 AD3d 673] |
| November 13, 2013 |
| Appellate Division, Second Department |
| HSBC Bank USA, as Trustee for Nomura AssetAcceptance Corporation Mortgage Pass Through Certificates, Series 2006-AF2,Respondent, v Ungar Family Realty Corp., Appellant, et al.,Defendants. |
—[*1] Hogan Lovells US LLP, New York, N.Y. (David Dunn and Chava Brandriss ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Ungar Family Realty Corp.appeals, as limited by its brief, from so much of an amended order of the Supreme Court,Rockland County (Alfieri, J.), entered January 17, 2012, as granted the plaintiff's motion,among other things, for summary judgment on the complaint insofar as asserted against itand to discontinue the action as against Jakab Ungar, and denied its cross motion todismiss the complaint insofar as asserted against it or, in the alternative, to stay allproceedings in the action pending appointment of an administrator for the estate of JakabUngar.
Ordered that the amended order is affirmed insofar as appealed from, with costs.
On this appeal, the defendant Ungar Family Realty Corp. (hereinafter UFRC)contends that the Supreme Court erred in granting the plaintiff's motion, among otherthings, for summary judgment on the complaint insofar as asserted against it and todiscontinue the action as against Jakab Ungar, and denying its cross motion to dismissthe complaint insofar as asserted against it or, in the alternative, to stay all proceedings inthe action pending appointment of a personal representative for the estate of Ungar.
UFRC contends that Ungar, who was the signer of the subject note and mortgage,was a necessary party to the action and that the action was a nullity inasmuch as he diedbefore the action was commenced. Normally, "[a] party may not commence a legal actionor proceeding against a dead person, but must instead name the personal representativeof the decedent's estate" (Jordanv City of New York, 23 AD3d 436, 437 [2005]). When a party's death does notaffect the merits of a case, however, "there is no need for strict adherence to therequirement that the proceedings be stayed pending substitution" (Bova vVinciguerra, 139 AD2d 797, 799 [1988]; see DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d857, 858 [2008]; cf. Martev Graber, 58 AD3d 1, 2 [2008]). Here, since Ungar had made an absoluteconveyance of all his interest in the mortgaged premises to UFRC, including his equityof redemption, and after learning of his death, the plaintiff elected not to seek adeficiency judgment against him, Ungar was not a necessary party (see Federal Natl.Mtge. Assn. v Connelly, 84 AD2d 805, 805 [1981]). Accordingly, the SupremeCourt properly, inter alia, granted the plaintiff's motion, among other things, for summaryjudgment on the complaint insofar as asserted against it [*2]and to discontinue the action as against Ungar, and deniedits cross motion to dismiss the complaint insofar as asserted against it or, in thealternative, to stay all proceedings in the action pending appointment of an administratorfor the estate of Ungar (see DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51AD3d at 858-859; Federal Natl. Mtge. Assn. v Connelly, 84 AD2d at 805; cf.Marte v Graber, 58 AD3d at 2). Mastro, J.P., Skelos, Balkin and Roman, JJ., concur.