Waterfall Victoria Master Fund, Ltd., respondent, v. Estate of Dennis F. Creese, etc., et al., defendants;  Lincoln Creese, as administrator of the estate of Dennis F. Creese, nonparty-Appellant. (2023)

Submitted—January 19, 2023

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, Lincoln Creese, as administrator of the estate of Dennis F. Creese, appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated November 21, 2019.  The order, insofar as appealed from, denied those branches of his motion which were to vacate an order and judgment of foreclosure and sale (one paper) of the same court dated May 4, 2018, and so much of an order of the same court dated September 18, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against the estate of Dennis F. Creese and for an order of reference, and to dismiss the amended complaint insofar as asserted against the estate of Dennis F. Creese, in effect, for lack of personal jurisdiction.

ORDERED that the order dated November 21, 2019 is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of Lincoln Creese, as administrator of the estate of Dennis F. Creese, which were to vacate the order and judgment of foreclosure and sale and so much of the order dated September 18, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against the estate of Dennis F. Creese and for an order of reference, and to dismiss the amended complaint insofar as asserted against the estate of Dennis F. Creese, in effect, for lack of personal jurisdiction are granted.

In approximately June 2016, the plaintiff moved, inter alia, for leave to amend the complaint to substitute the decedent's estate (hereinafter the Estate) in his place, and to join, among others, Creese as an heir-at-law.  The Supreme Court granted the motion, and the plaintiff served Creese, as an heir-at-law, with a supplemental summons and amended complaint.  In an order dated September 18, 2017, the court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against the Estate and for an order of reference.  In an order and judgment of foreclosure and sale dated May 4, 2018, the court granted the plaintiff's motion to confirm the referee's report, confirmed the referee's report, and directed the sale of the property.

After issuance of the letters of administration for the Estate, Creese, in his capacity as administrator of the Estate, moved, inter alia, to vacate the order and judgment of foreclosure and sale, and so much of the order dated September 18, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against the Estate and for an order of reference, and to dismiss the amended complaint insofar as asserted against the Estate, in effect, for lack of personal jurisdiction.  In an order dated November 21, 2019, the Supreme Court denied the motion.  Creese, in his capacity as administrator of the Estate (hereinafter the appellant), appeals.

An action may not be commenced against a dead person, and, thus, an action brought after the person's death must be brought against the personal representative of the decedent's estate (see Federal Natl. Mtge. Assn. v Tudor, 185 AD3d 905, 906;  Krysa v. Estate of Qyra, 136 AD3d 760, 760;  Jordan v. City of New York, 23 AD3d 436, 437).  Here, although the plaintiff purported to commence the action against the decedent, the Supreme Court subsequently granted the plaintiff's motion, inter alia, to substitute the Estate for the decedent and to join, among others, certain known and unknown heirs.  The appellant does not protest the use of substitution pursuant to CPLR 1015(a) under the circumstances (cf.  Sokoloff v. Schor, 176 AD3d 120, 134;  Wendover Fin. Servs. v. Ridgeway, 93 AD3d 1156, 1157), but instead contends that the plaintiff was obligated to substitute the representative of the Estate pursuant to CPLR 1015(a), and that the plaintiff failed to do so and failed to obtain jurisdiction over the Estate.

To the extent that the plaintiff argues that the subject branches of the appellant's motion should be denied because the Estate was not an indispensable party, this argument is misplaced.  The Estate is a named defendant in the action, the amended complaint sought a deficiency judgment against the Estate, and the order and judgment of foreclosure and sale granted that relief, despite the fact that a representative of the Estate was not appointed until after the order and judgment of foreclosure and sale was entered.  Plainly, the appellant has an interest in vacating any order or judgment entered against the Estate, and in having the amended complaint dismissed insofar as asserted against the Estate.

Under these circumstances, where it is undisputed that jurisdiction was not obtained over the Estate, the Supreme Court should have granted those branches of the appellant's motion which were to vacate the order and judgment of foreclosure and sale, and so much of the order dated September 18, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against the Estate and for an order of reference, and to dismiss the amended complaint insofar as asserted against the Estate, in effect, for lack of personal jurisdiction.

BARROS, J.P., BRATHWAITE NELSON, DOWLING and WARHIT, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court