Deutsche Bank National Trust Company, etc., appellant, v. Unknown Heirs to the Estate of Jacinto Ortiz, etc., et al., defendants, Carmen Ortiz, as heir to the estate of Jacinto Ortiz, respondent. (2026)

Submitted—January 30, 2026

DECISION & ORDER

C/

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated March 4, 2020.  The order granted the motion of the defendant Carmen Ortiz, as heir to the estate of Jacinto Ortiz, pursuant to CPLR 1021 and 3211(a)(8) to dismiss the amended complaint insofar as asserted against her.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Carmen Ortiz, as heir to the estate of Jacinto Ortiz, pursuant to CPLR 1021 and 3211(a)(8) to dismiss the amended complaint insofar as asserted against her is denied.

In August 2013, the plaintiff commenced this action against Jacinto Ortiz (hereinafter the decedent), among others, to foreclose a mortgage on certain real property located in Richmond County.  Subsequently, the plaintiff filed an amended complaint removing the decedent as a defendant and adding as defendants the heirs of the decedent's estate.  The amended complaint alleged, inter alia, that the decedent had died prior to the commencement of the action.  It appears that the decedent died intestate.  The defendant Carmen Ortiz, as heir to the estate of Jacinto Ortiz (hereinafter the defendant), moved pursuant to CPLR 1021 and 3211(a)(8) to dismiss the amended complaint insofar as asserted against her.  By order dated March 4, 2020, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

“An action commenced against a deceased defendant is a nullity only insofar as asserted against that defendant, not insofar as asserted against other defendants” (Wells Fargo Bank, N.A. v. Dhanani, 201 AD3d 1005, 1007;  see U.S. Bank N.A. v. Heimiller, 242 AD3d 926, 927).  Here, although the action was a nullity insofar as asserted against the decedent, it was not a nullity insofar as asserted against the other defendants (see U.S. Bank N.A. v. Heimiller, 242 AD3d at 927;  SC Bromley 1, LLC v. Sherman, 201 AD3d 832, 832–833).

Moreover, “[w]here a property owner dies intestate, title to real property is automatically vested in his or her distributees” (U.S. Bank Trust, N.A. v. Gedeon, 181 AD3d 745, 747;  see SC Bromley 1, LLC v. Sherman, 201 AD3d at 832).  “Thus, where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees” (U.S. Bank Trust, N.A. v. Gedeon, 181 AD3d at 747;  see U.S. Bank N.A. v. Heimiller, 242 AD3d at 928;  SC Bromley 1, LLC v. Sherman, 201 AD3d at 832–833).  Here, because the decedent died intestate, and because the plaintiff no longer seeks a deficiency judgment, the decedent's estate was not a necessary party, and the plaintiff could proceed directly against the distributees of the decedent's estate (see U.S. Bank N.A. v. Heimiller, 242 AD3d at 928;  SC Bromley 1, LLC v. Sherman, 201 AD3d at 832–833).

Accordingly, the Supreme Court should have denied the defendant's motion pursuant to CPLR 1021 and 3211(a)(8) to dismiss the amended complaint insofar as asserted against her.

The plaintiff's remaining contention is without merit.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court