| Aurora Bank FSB v Albright |
| 2016 NY Slip Op 02307 [137 AD3d 1177] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Aurora Bank FSB, Respondent, v Lee Albrightet al., Appellants, et al., Defendants. |
McMillan, Constabile, Foster & Perone, LLP, Larchmont, NY (Kenneth W.Rudolph of counsel), for appellants.
In an action to foreclose a mortgage, the defendants Lee Albright, Glen Albright, asexecutor of the last will and testament of Lovelia Albright and as trustee of the maritaltrust created under the last will and testament of Lovelia Albright, and Todd Albright, asexecutor of the last will and testament of Lovelia Albright and as trustee of the maritaltrust created under the last will and testament of Lovelia Albright, appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Wood,J.), dated March 27, 2015, as granted those branches of the plaintiff's motion which werefor summary judgment on the complaint insofar as asserted against them and for theappointment of a referee to compute the amount due.
Ordered that the appeal purportedly taken by the defendant Lee Albright isdismissed, without costs or disbursements, and so much of the order as granted thatbranch of the plaintiff's motion which was for summary judgment on the complaintinsofar as asserted against the defendant Lee Albright is vacated; and it is further,
Ordered that the order is reversed insofar as reviewed, without costs ordisbursements, those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the defendants Glen Albright, asexecutor of the last will and testament of Lovelia Albright and Trustee of the marital trustcreated under the last will and testament of Lovelia Albright, and Todd Albright, asexecutor of the last will and testament of Lovelia Albright and as trustee of the maritaltrust created under the last will and testament of Lovelia Albright, and for theappointment of a referee to compute the amount due are denied, and a separate order ofthe same court, also dated March 27, 2015, is vacated.
The plaintiff commenced this action to foreclose a mortgage. The defendant LeeAlbright (hereinafter the deceased defendant) subsequently died. The plaintiff thereaftermoved for, inter alia, summary judgment on the complaint insofar as asserted against thedeceased defendant and insofar as asserted against the defendants Glen Albright, asexecutor of the last will and testament of Lovelia Albright and trustee of the marital trustcreated under the last will and testament of Lovelia Albright, and Todd Albright, asexecutor of the last will and testament of Lovelia Albright and as trustee of the maritaltrust created under the last will and testament of Lovelia Albright, and for theappointment of a referee to compute the amount due. In the order appealed from datedMarch 27, 2015, the Supreme Court, among other things, granted those branches of theplaintiff's motion.
[*2] "Generally, thedeath of a party divests a court of jurisdiction to act, and automatically stays proceedingsin the action pending the substitution of a legal representative for the decedent pursuantto CPLR 1015 (a)" (NYCTL2004-A Trust v Archer, 131 AD3d 1213, 1214 [2015]; see CPLR 1015,1021; JPMorgan Chase Bank,N.A. v Rosemberg, 90 AD3d 713, 714 [2011]; Neuman v Neumann, 85 AD3d1138, 1139 [2011]; Stancuv Cheon Hyang Oh, 74 AD3d 1322, 1322-1323 [2010]; Singer v Riskin, 32 AD3d839, 839-840 [2006]). "[A]ny determination rendered without such substitution willgenerally be deemed a nullity" (Singer v Riskin, 32 AD3d at 840; see NYCTL2004-A Trust v Archer, 131 AD3d at 1214; JPMorgan Chase Bank, N.A. vRosemberg, 90 AD3d at 714; Stancu v Cheon Hyang Oh, 74 AD3d at1322-1323). Furthermore, "[t]he death of a party terminates the authority of the attorneyfor that person to act on his or her behalf" (Hyman v Booth Mem. Hosp., 306AD2d 438, 438 [2003]; see Hart v Blabey, 286 NY 75, 76 [1941]; Lewis v Kessler, 12 AD3d421, 422 [2004]; Bossert v Ford Motor Co., 140 AD2d 480, 481[1988]).
Here, the deceased defendant died before the plaintiff's motion was made and beforethe order appealed from was issued. The attorney who had represented the deceaseddefendant prior to his death purportedly took this appeal on behalf of, among others, thedeceased defendant. However, since a substitution of parties had not been effected priorto the filing of the notice of appeal, counsel lacked the authority to act for the deceaseddefendant, and the purported appeal taken on behalf of the deceased defendant must bedismissed (see Hyman v Booth Mem. Hosp., 306 AD2d 438, 438 [2003];Timoner v North Shore Internal Medicine Assoc., 125 AD2d 300, 301[1986]; Hemphill v Rock, 87 AD2d 836, 836 [1982]). Furthermore, since nosubstitution was made prior to the entry of the order appealed from, the order appealedfrom is a nullity to the extent that it pertains to the deceased defendant, and we vacate somuch of the order as granted that branch of the plaintiff's motion which was for summaryjudgment on the complaint insofar as asserted against the deceased defendant (see Jordan v City of New York,23 AD3d 436, 436-437 [2005]; Klaus v Schepps, 15 AD3d 626, 626 [2005];Cocozzelli, Lerner, Meunkle & Grossman v Basile, 247 AD2d 354, 355[1998]; Campbell v Dutton Stor. Distrib. Co., 240 AD2d 690, 691 [1997];Halperin v Waldbaum's Supermarket, 236 AD2d 514, 515 [1997]).
Similarly, in this case, since a proper substitution had not been made, the SupremeCourt should not have determined the merits of the plaintiff's motion, even to the extentthat the plaintiff sought relief against the other defendants (see NYCTL 2004-A Trustv Archer, 131 AD3d at 1214; Abley Props., Inc. v Reid, 52 AD3d 442, 443 [2008]).Although this Court has recognized, under certain limited circumstances, that "where aparty's demise does not affect the merits of a case, there is no need for strict adherence tothe requirement that the proceedings be stayed pending substitution" (U.S. Bank N.A. v Esses, 132AD3d 847, 848 [2015]), those circumstances are not present here.
Accordingly, the court should have denied the subject branches of the plaintiff'smotion on procedural grounds (see U.S. Bank N.A. v Esses, 132 AD3d at 848; cf. DLJ Mtge. Capital, Inc. v 44Brushy Neck, Ltd., 51 AD3d 857, 859 [2008]). Mastro, J.P., Dillon, Miller andBarros, JJ., concur.