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Civil Court, City of New York,

STATEN ISLAND VENTURES LLC, Petitioner, v. Robert C. CLARKE, Raymond J. Clarke, Donna Clarke, Carmen Brink, Christian Biasutto, “John Doe” and “Jane Doe,” Respondents.

Index No. LT-056404-20/QU

Decided: October 28, 2022

For Petitioners: Nissan Shapiro Law PC For Respondents: SDK Heiberger LLP for Carmen Brink

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion


Order to Show Cause, Affirmations and Affidavits 1 NYSCEF Doc. No. 53, 33-35

Exhibits in Support of OSC NYSCEF Doc. No. 36-52

Answering Affirmation and Affidavit 2 NYSCEF Doc. No. 55, 56

Exhibits in Opposition NYSCEF Doc. No. 57-75

This is a holdover proceeding. After many arguments and papers submitted, the Court is called upon to vacate the judgment, vacate the warrant and dismiss the proceeding.

Procedural History and Summary of Arguments Presented:

The dominant argument presented by the movant is that the named respondent Robert C. Clarke passed away before this proceeding was commenced and petitioner had “actual” knowledge that Robert C. Clarke had died. Movant, Carmen Brink, argues that Robert C. Clarke was the deed owner and the petitioner “obtained deeds to itself” knowing that Robert C. Clark was deceased, without proper authority.

On or about November 21, 2021, during the height of the COVID-19 pandemic, the court granted petitioner an inquest after its motion pursuant to COVID-19 Emergency Eviction and Foreclosure Prevention Act (EEFPA).1 An inquest was held on November 10, 2021 and a default judgment was granted. It was conditioned upon submission of non-military affidavits for the named respondents. The November 24, 2021 Decision/Order of Hon. Guthrie shows that the Court was not informed that Robert C. Clarke had passed away.

Petitioner was to serve a copy of the court's Decision/Order “upon each respondent.” Movant states that petitioner filed affidavits of investigation stating that respondent Robert C. Clarke, decedent, was not in the military service or dependent on someone in the military.2

Based upon said affidavits of non-military service, the warrant of eviction was granted.

It is not disputed that movant had sought prior relief and that she was represented by other counsel. Movant had accepted the “status quo” and asked only for more time. Movant argues that this is the first time that a motion to vacate the default judgment is presented.

Movant argues that this proceeding must be dismissed because petitioner sued a dead person. Upon the dismissal of the case, the judgment and warrant are to be vacated as nullities.

The question is whether petitioner's failure to disclose at inquest that Robert C. Clarke had passed away before the commencement of the case renders the proceeding and default judgment a nullity and requires dismissal.

Petitioner goes to great length to describe all the different times that movant was in court and sought other relief. Petitioner argues, however, that it is of no consequence that when the case was commenced respondent Robert C. Clarke was dead. The court has searched the record and finds that only in the instant order to show cause the court was alerted to the fact that when the proceeding was commenced Robert C. Clarke had passed away.

Petitioner does not address the fact that it sued a dead person with apparent knowledge. Petitioner justifies its argument and boldly states, the decedent “whose rights have been terminated, is and subsequently dies, and who no longer has a possessory interest in the premises at the time the proceeding is commenced.” [Shapiro ¶45.]3 It is then stated that “Likewise the issue of the Non-military affirmation is effectively moot. If Mr. Clarke is dead, then he is not in the military. Mr. Clarke or the ‘Estate of Robert C. Clarke’ are not prejudiced by an investigation finding that he is not in the military.” [Shapiro ¶48]

Discussion and Legal Conclusion:

Based upon the undisputed evidence and the admission that the case was commenced against a known dead person, the proceeding is a legal nullity from its inception. The court had no jurisdiction to grant a default judgment. Rivera v Bruchim, 103 AD3d 700 (2d Dept. 2013).

The law is clear that one cannot sue the dead. There is ample case law that provides that you cannot sue the dead and if a lawsuit is pursued, the lawsuit is void from its very beginning. The act of knowingly suing a decedent is contrary to the rules that an attorney or litigant is to verify that the facts and allegations to be true based upon their knowledge or upon information and belief supported by documents. See CPLR § 2105, Rule 2106, and 22 NYCRR 130-1.1.

Petitioner's attempt to ignore the elephant in the room by calling out what transpired with movant after the judgment cannot salvage the default judgment and warrant.

It is undisputed that the inquest judge and judge who examined the prior order to show cause were not informed that petitioner had sued a dead person. This blaring omission cannot be overlooked and requires that the case be dismissed.

“[I]t is well established that the dead cannot be sued” (Marte v Graber, 58 AD3d 1, 3, 867 NYS2d 71 [2008]). Accordingly, “[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent's estate” (Jordan v City of New York, 23 AD3d 436, 437, 807 NYS2d 595 [2005]; see Krysa v Estate of Qyra, 136 AD3d 760, 760-761, 24 NYS3d 534 [2016]; Dime Sav. Bank of NY v Luna, 302 AD2d 558, 558, 755 NYS2d 300 [2003]; see also 1-210 Weinstein-Korn Miller, NY Civ Prac CPLR ¶ 210.04)” Matter of Foreclosure of Tax Liens, 165 AD3d 1112 (2d Dept.2018), 35 NY3d 998 appeal dismissed June 23, 2020.

Accordingly, it is

ORDERED, that the case is a nullity, and it is dismissed, and it is

ORDERED that upon dismissing the case, the default judgment after inquest and the warrant of eviction are null and void and vacated, it is

ORDERED that all respondents are restored to possession forthwith.

This Decision and Order is being filed to NYSCEF.

This constitutes the Decision and Order of the Court.

So Ordered.


1.   The court notes that the Affirmation of Service stated that the Notice of Motion and Scheduled Case for November 10, 2021 was mailed to 21-36 38th Street, First Floor Apt., Queens, NY 11105. The address of the subject premises is 21-36 28th Street, Queens, NY 11105.

2.   The affidavit of non-military investigation dated December 4, 2021, states that a neighbor from 21-34 28th Street was asked about Robert C. Clarke's military service and the neighbor gave “a negative reply.” The affidavit of investigation perpetuates the misrepresentation to the court that Robert C. Clarke was still alive.

3.   The notice of termination is dated March 11, 2020. Petitioner's documents show that someone transferred Robert C. Clarke's real estate ownership interest on August 4, 2020, after he passed away and after the date on the Notice of Termination. Thus, on March 11, 2020, Robert C. Clarke was still the owner or one of the owners, as revealed by petitioner's own documents and the predicate notice is questionable.

Enedina Pilar Sanchez, J.

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