Decided on August 5, 2013

Everhome Mortgage Company f/k/a ALLIANCE MORTGAGE CO., Plaintiff,

against

Virgilio Paul Sirignano, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, UNITED STATES OF AMERICA, INTERNAL REVENUE SERVICE, “JOHN DOES” and “JANE DOES”, said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien the premises, Defendants.

8479/2010

ROSICKI, ROSICKI & ASSOC., PC

Attys. For Plaintiff

51 E. Bethpage Rd.

Plainview, NY 11803

VIRGILIO PAUL SIRIGNANO

c/o David Harrow

14 Wheeler Ct. Deer Park, NY 11729

Thomas F. Whelan, J.

Upon the following papers numbered 1 to5read on this motionfor accelerated judgments, deletion and/or substitution of parties and caption amendments to reflect same and the appointment of a referee to compute; Notice of Motion/Order to Show Cause and supporting papers 1 – 4; 5 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers; Replying Affidavits and supporting papers; Other; (and after hearing counsel in support and opposed to the motion, it is

ORDERED that this motion (#001) by the plaintiff for accelerated judgments against the defendants, the substitution of persons for the mortgagor defendant and deletion of the unknown defendants and the appointment of a referee to compute amounts due under the mortgage which is the subject of this action is considered under CPLR Articles 10 and 30, RPAPL 1321 and relevant provisions of the EPTL and SPCA and is denied.

The plaintiff commenced this action to foreclose a September 22, 2000 “Home Equity Conversion Mortgage” given by Arline Sirignano and Virgilio Paul Sirignano to secure an adjustable rate note executed on that same date to BNY Mortgage Company, LLC. Neither the note nor the mortgage recite the amount of the loan but instead reference a Home Equity Conversion Loan Agreement that is not part of the record in this proceeding. The mortgage does, however, state that the principal thereof shall not exceed $192,000 as purportedly set forth in that Home Equity Conversion Loan Agreement that is not before the court. Also executed on that date by the mortgagors was a second conversion mortgage in favor of the United States Secretary of Housing and Urban Development. The plaintiff alleges that a default occurred under the first mortgage in December of 2008, upon the death Virgilio Paul Sirignano, who was predeceased by his wife and co-mortgagor by some nine months. This event is alleged to constitute a default under the terms of the reverse mortgage for which the remedy of foreclosure is available to the plaintiff in this action.

Although the last surviving mortgagor, Virgilio Paul Sirignano, died some sixteen months prior to the commencement of this action, the plaintiff nevertheless named him as a defendant. Such an undertaking puts the plaintiff in the unenviable and impracticable position of having to serve a dead person. Undaunted by this conundrum, the plaintiff sent its process server to the address of the mortgaged premises in April of 2010 where he found one, David Harrow, to whom the process server delivered two copies of the summons and complaint. In one of his affidavits of service, the process server identified David Harrow as an “heir to the estate of Virgilio Paul Sirignano”. In a second affidavit, the process server states that he delivered a second copy of the process papers to David Harrow on behalf of his brother, Steven Harrow, who is likewise alleged to be an heir to the estate of Virgilio Paul Sirignano.

By answer subscribed and sworn to on April 26, 2010, the deceased, defendant mortgagor purports to appear herein “through David Harrow [hereinafter generally referred to as “Defendant”] who is named in his Last Will and Testament as the executor of his estate but who has not yet been [*2]issued letters of administration. Having been issued a certificate of voluntary administration by the Surrogate’s Court of Suffolk County, the defendant files a Verified Answer to the Plaintiff’s Complaint through David Harrow, who generally denies the allegations of said complaint”. Mr. Harrow goes on to deny the more specific allegations in the plaintiff’s complaint and he asserts several affirmative defenses.

The plaintiff now moves for an order: (1) awarding it summary judgment dismissing the answer of David Harrow and for summary judgment on its complaint; (2) fixing the defaults in answering of the non-answering defendants; (3) substituting, by way of a caption amendment, David Harrow and Steven Harrow as heirs to the estate of Virgilio Paul Sirignano, in the place of the deceased defendant Virgilio Paul Sirignano and deleting the unknown defendants listed in the caption; and (4) appointing a referee to compute amounts due under the subject mortgage. The motion is considered under CPLR 1015, 1024 and EPTL 1-2.13 11-3.1 and SCPA Article 13 and is denied.

That “the dead cannot be sued” is a well established principle of the jurisprudence of this state (see Marte v Graber, 58 AD3d 1, 867 NYS2d 71 [1st Dept 2008]; see also Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, 940 NYS2d 391 [4th Dept 2012]). It gives rise to the maxim that a claimant may not bring a legal action against a person already deceased at the time of the commencement of such action, but instead, must proceed against the personal representative of the decedent’s estate (see Jordan v City of New York, 23 AD3d 436, 807 NYS2d 595 [2d Dept 2005]; see also Outing v Mathis, 304 AD2d 670, 757 NYS2d 483 [2d Dept 2003], or against those who have succeeded to interests of the decedent that are the subject of the action (see Bank of New York v Stradford, 55 AD3d 765, 869 NYS2d 554 [2d Dept 2008]; Deutsche Bank Natl. Trust v Torres, 24 Misc 3d 1216[A], 2009 WL 2005599 [Suffolk County, Sup. Ct. 2009]).

Distilled from these concepts is the rule that no action may effectively be commenced against a deceased person subsequent to his or her death and prior to the appointment of a personal representative (see Arbalez v Chun Kuei Wu, 18 AD3d 583, 795 NYS2d 327 [2d Dept 2005]; Laurenti v Teatom, 210 AD2d 300, 619 NYS2d 754 [2d Dept 1994]; Dime Sav. Bank of New York FSB v Luna, 302 AD2d 558, 755 NYS2d 300 [2d Dept. 2003]). The death of a named defendant prior to the commencement of an action has thus been held to render the action, insofar as asserted against deceased defendant, a legal nullity from its inception which leaves the Court without jurisdiction to grant any requested relief (see Rivera v Bruchim, 103 AD3d 700, 959 NYS2d 448 [2d Dept. 2013]; Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, supra; Marte v Graber, 58 AD3d 1, supra; Deutsche Bank Natl. Trust v Torres, 24 Misc 3d 1216 [A], 2009 WL 2005599 [Suffolk County, Sup.Ct. 2009]; cf., GMAC Mtge. Corp. v Tuck, 299 AD2d 315, 750 NYS2d 93 [2d Dept 2002]) ^[FN1]. [*3]

That the foregoing rules are applicable to mortgage foreclosure actions is clear (see Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, supra; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713, 934 NYS2d 346 [2d Dept 2011]; Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, 755 NYS2d 300 [2d Dept 2003]). Due, however, to the unique nature of such actions (see Jo Ann Homes v Dworetz, 25 NY2d 112, 302 NYS2d 799 [1969], courts have held that the personal representative of the estate of a deceased mortgagor, who died intestate and against whom no deficiency judgment is sought, is not a necessary party to a mortgage foreclosure action and that such action may be commenced or continued against the distributees of any such intestate mortgagor (see Winter v Kram, 3 AD2d 175, 159 NYS2d 417 [2d Dept 1957]; see also Salamon Bros. Realty Corp. v Alvarez, 22 AD3d 482, 802 NYS2d 705 [2d Dept 2005]; cf. Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, supra). Accordingly, a foreclosing plaintiff may prosecute its claims against the distributees of a deceased mortgagor only where said mortgagor died intestate and no deficiency judgment is sought by the plaintiff in such action (see Financial Freedom Senior Funding Corp. v Rose, 64 AD3d 539, 883 NYS2d 546 [2d Dept 2009]; Salamon Bros. Realty Corp. v Alvarez, 22 AD2d 482, supra; Winter v Kram, 3 AD2d 175, supra). Where, however, the deceased mortgagor died testate, or where he or she was personally liable on the mortgage note or bond and the plaintiff seeks a deficiency judgment in its mortgage foreclosure complaint, the plaintiff cannot proceed against the distributees of the deceased mortgagor, but instead, must proceed against the personal representative of the estate of the deceased mortgagor (see Jordan v City of New York, 23 AD3d 436, supra; Countrywide Home Loans, Inc. v Keys, 27 AD2d 247, 811 NYS2d 362 [1st Dept 2006]; Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, supra).

Here, it appears that the deceased mortgagor, Virgilio Paul Sirignano, died testate rather than intestate. Although the mortgage debt itself is considered personalty (see Flyer v Sullivan, 284 AD2d 697 [1st Dept 1954]; EPTL 13-1.1[7]), authority over the decedent’s ownership interest in the mortgaged premises through the exercise of his right of redemption or otherwise presumptively falls within the province of the personal representative of his testate estate rather than his statutory distributees (a/k/a “heirs”). The plaintiff is thus precluded from prosecuting its claims for foreclosure and sale against his “heirs” and, instead, must proceed against the duly appointed executor, administrator with the will annexed or other qualified personal representative of his testate estate (see EPTL 1-2.13; 11-3.1). The complaint insofar as asserted against such deceased mortgagor is thus a nullity and the court is without jurisdiction to grant the plaintiff the relief requested on this motion (see Rivera v Bruchim, 103 AD3d 700, supra; Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, supra; Marte v Graber, 58 AD3d 1, supra).

Nor can the prosecution of this action in its current procedural cast be saved by the plaintiff’s resort to the provisions of CPLR 1015 and 1021 which governs substitution upon the death of a party. The substitution provisions of CPLR 1021 may only be resorted to in cases wherein the [*4]deceased defendant was alive at the time the action was commenced and died thereafter (see Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, supra; Marte v Graber, 58 AD3d 1, supra; see also Jordan v City of New York, 23 AD3d 436, supra). Similarly unavailing are applications to amend the summons and all captions under CPLR 305(c), since such applications must be made subsequent to service of process upon the targeted defendant (see Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, supra; Marte v Graber, 58 AD3d 1; cf., GMAC Mtge. Corp. v Tuck, 299 AD2d 315, supra). In addition, CPLR 1024, which governs the identification of persons sued as unknowns once their names and/or true identities become known to the plaintiff, offers no refuge to the plaintiff in cases such as the instant one where the deceased defendant expired prior to commencement of the action (see Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, supra). The court thus denies the plaintiff’s application for an order “amending the caption to substitute” David Harrow and Steven Harrow, each as heirs to the estate of deceased defendant Virgilio Paul Sirignano, in the place of such defendant.

Finally, the court finds that the answer served by David Harrow may not be considered a waiver of any jurisdictional infirmities arising under the above cited rules, as his appointment as voluntary administrator appears insufficient to qualify his appearance herein as the personal representative of the estate of the deceased defendant mortgagor (see EPTL 1-2.13; 11-3.1). Voluntary administration of estates is governed by SCPA Article 13 and is aimed at streamlining appointments of fiduciaries of small estates containing personal property in need of administration. A voluntary administrator may act only with respect to personalty, including certain claims belonging to the decedent, in amounts not exceeding $30,000.00 and is thus without authority to act with respect to real property (see SCPA §§ 1301; 1306). Although a voluntary administrator is considered a “fiduciary” as defined in EPTL 1-2.7 and SCPA 103(2) until another is appointed (see SCPA § 1306), a personal representative is more narrowly defined in EPTL 1-2.7 as one to whom letters to administer the estate have issued. Since a voluntary administrator is not issued administer the estate of his or her decedent, such voluntary administrator is not qualified to appear on behalf of the estate in actions except those listed in SCPA § 1306(3) (see Graham v Henderson, 224 FRD 59 [ND NY 2003]). This foreclosure action is not among those listed as it is “one in the nature of a proceeding in rem to appropriate the land” (see Jo Ann Homes v Dworetz, 25 NY2d 112, supra), which, if successful, will effect an extinguishment of the decedent’s ownership interests in the premises absent a timely exercise of his right of redemption. Accordingly, David Harrow, in his capacity as voluntary administrator of the estate of the deceased, testate, defendant mortgagor is without authority to appear herein on behalf of such estate.

In view of the foregoing, the instant motion (#001) by the plaintiff is denied. The proposed order appointing a referee to compute, has been marked “not signed”.

DATED: ____August 5, 2013_____________________________________________

THOMAS F. WHELAN, J.S.C.

Footnote 1: In GMAC Mtge. Corp. v Tuck, 299 AD2d 315, 750 NYS2d 93 [2d Dept 2002]), the Second Department held that because the appointment of co-personal representatives of the estate of a deceased defendant was in place prior to the commencement of the action and one of such representatives was served with process, the plaintiff could proceed against them upon employment of the substitution procedures contemplated by CPLR 1015 and 1021, even though service upon the decedent was never effected (cf., Wendover Fin. Serv. v Ridgeway, 93 AD3d 1156, 940 NYS2d 391[4th Dept 2012], supra; Marte v Graber, 58 AD3d 1 ,867 NYS2d 71 [1st Dept 2008], supra). While it is not clear from a reading of the decision in Tuck whether the deceased defendant was alive at the time of the commencement of the action and died thereafter, it is clear that such defendant was named as a party defendant but never served.

Comments

comments