| U.S. Bank N.A. v Esses |
| 2015 NY Slip Op 07645 [132 AD3d 847] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for GSAAHome Equity Trust 2006-9 Asset-Backed Certificates Series 2006-9,Appellant, v Abraham Esses et al., Defendants, and Mark M. Benun,Respondent. |
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), forappellant.
Steven Cohn, P.C., Carle Place, N.Y. (Mitchell R. Goldklang of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (F. Rivera, J.), dated May 16, 2014, which denied itsmotion to vacate an order of the same court dated February 21, 2014, staying allproceedings in the action pursuant to CPLR 1015 (a).
Ordered that the order dated May 16, 2014, is affirmed, with costs.
In November 2006 the defendant Mark M. Benun, as sole owner, transferred thepremises known as 2055 East 1st Street in Brooklyn (hereinafter the subject property) tohimself and his grandfather, the defendant Abraham Esses, as joint tenants with right ofsurvivorship. According to the plaintiff, Esses was the obligor on a note and mortgagerelated to the subject property and defaulted on his payment obligations thereunder. InOctober 2009, the plaintiff commenced this action to foreclose the mortgage. On January21, 2010, Esses died. In an order dated February 21, 2014, the Supreme Court stayed allproceedings in the action pursuant to CPLR 1015 (a). Thereafter, the plaintiff moved tovacate the order dated February 21, 2014. The court denied the motion, and the plaintiffappeals.
" 'Generally, the death of a party divests a court of jurisdiction to act, andautomatically stays proceedings in the action pending the substitution of a personalrepresentative for the decedent' " (Lambert v Estren, 126 AD3d 942, 943 [2015], quoting Neuman v Neumann, 85 AD3d1138, 1139 [2011]). "In most instances a personal representative appointed by theSurrogate's Court should be substituted in the action to represent the decedent's estate"(Lambert v Estren, 126 AD3d at 943). However, where a party's demise does notaffect the merits of a case, there is no need for strict adherence to the requirement that theproceedings be stayed pending substitution (see DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d857, 858 [2008]; Paterno vCYC, LLC, 46 AD3d 788 [2007]; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d436 [2005]; Bova v Vinciguerra, 139 AD2d 797, 799 [1988]). In the contextof a mortgage foreclosure action, where a deceased defendant made an absoluteconveyance of all his or her interest in the mortgaged premises to another defendant,including his or her equity of redemption, and the plaintiff either discontinued the actionas against the deceased [*2]defendant or elected not toseek a deficiency judgment against the deceased defendant's estate, then the deceaseddefendant is not a necessary party to the action (see HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d673 [2013]; Bank of N.Y.Mellon Trust Co. v Ungar Family Realty Corp., 111 AD3d 657 [2013]). Here,although Benun, as the surviving joint tenant, automatically inherited the subjectproperty from Esses (see Trottav Ollivier, 91 AD3d 8, 12 [2011]), the plaintiff has neither moved to substitute arepresentative for Esses' estate as a defendant (see CPLR 1021), discontinued theaction insofar as asserted against Esses, nor represented that it would not seek adeficiency judgment against Esses' estate.
The parties' remaining contentions are without merit, improperly raised for the firsttime on appeal, or refer to matter dehors the record.
Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate theorder dated February 21, 2014, staying all proceedings in the action pursuant to CPLR1015 (a). Dillon, J.P., Miller, Maltese and LaSalle, JJ., concur.