SALOMON BROTHERS REALTY CORP v. Edward P. Kallen, etc., respondent-appellant. (2005)

In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Rockland County (Bergerman, J.), dated July 19, 2004, as (a) denied that branch of its motion which was for summary judgment with leave to renew after joinder of necessary parties, (b) denied that branch of its motion which was to strike the answer and affirmative defenses of Edward P. Kallen, and (c) directed the joinder of necessary parties, and Edward P. Kallen cross-appeals from stated portions of the same order.

ORDERED that the cross appeal is dismissed as abandoned, without costs or disbursements (see 22 NYCRR 670.8[c], [e] );  and it is further,

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly directed that the heirs of the deceased mortgagor be joined as necessary parties to the action.   The record does not reflect that the plaintiff exercised the due diligence required by CPLR 315 to permit service by publication upon these necessary parties (see Caban v. Caban, 116 A.D.2d 783, 497 N.Y.S.2d 175;  First Union Nat. Bank v. Bailey, 7 Misc.3d 1027(A), 801 N.Y.S.2d 233, 2005 N.Y. Slip Op. 50793[U], 2005 WL 1253818 [Sup. Ct., Kings County, May 26, 2005];  cf. Levy v. Robinson, 41 A.D.2d 558, 340 N.Y.S.2d 48;  Matter of McFarland v. McFarland, 7 Misc.3d 1003(A), 801 N.Y.S.2d 236, 2005 N.Y. Slip Op. 50418[U], 2005 WL 742294 [Sur. Ct., Nassau County, Mar. 31, 2005] ).

In light of our determination, we need not reach the plaintiff's remaining contentions.