FEDERAL NATIONAL MORTGAGE ASSOCIATION v. LLC (2026)

DECISION & ORDER

In an action to foreclose a mortgage, non-party Echo Ray, LLC, appeals from an order of the Supreme Court, Queens County (Cassandra A. Johnson, J.), dated May 2, 2024.  The order denied the motion of nonparty Echo Ray, LLC, for leave to intervene in this action, pursuant to CPLR 5015(a)(4) to vacate an order and judgment of foreclosure and sale (one paper) of the same court (Allan B. Weiss, J.) dated October 26, 2018, and to dismiss the complaint or, in the alternative, for leave to serve and file an answer.

ORDERED that the order is reversed, on the law, with costs, those branches of the motion of nonparty Echo Ray, LLC, which were for leave to intervene in this action, pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale, and to dismiss the complaint are granted, and that branch of its motion which was for leave to serve and file an answer is denied as academic.

In April 2008, Nancy Gadson allegedly executed a note secured by a mortgage on certain real property located in Queens County.  In September 2011, Gadson died.

In January 2014, the plaintiff commenced this action to foreclose the mortgage, naming Gadson as a defendant.  In an order of reference dated April 4, 2017, the Supreme Court granted the plaintiff's unopposed motion, inter alia, for leave to amend the caption to substitute the executor of Gadson's estate as a defendant in this action and for leave to enter a default judgment against the defendants.  Thereafter, the court entered an order and judgment of foreclosure and sale dated October 26, 2018.  A foreclosure sale was scheduled for September 4, 2018, but was adjourned.

In January 2023, two of Gadson's successors in interest to the property conveyed their interest in the property to Echo Ray, LLC (hereinafter Echo Ray).  In February 2023, Echo Ray moved for leave to intervene in this action, pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale, and to dismiss the complaint or, in the alternative, for leave to serve and file an answer.  In an order dated May 2, 2024, the Supreme Court denied Echo Ray's motion.  Echo Ray appeals.

Upon a timely motion, a person is permitted to intervene in an action as of right when, among other things, “the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment” (CPLR 1012[a][2] ), or “the action involves the disposition ․ of, or the title ․ to, property and the person may be affected adversely by the judgment” (id. § 1012[a][3] ).

Here, contrary to the plaintiff's contention, the motion of Echo Ray was not untimely.  “ ‘A party may not commence a legal action or proceeding against a dead person’ ” (Hussain v. Chain, 217 A.D.3d 929, 930, 192 N.Y.S.3d 170, quoting Jordan v. City of New York, 23 A.D.3d 436, 437, 807 N.Y.S.2d 595), and an action to foreclose a mortgage is a legal nullity insofar as asserted against a deceased mortgagor (see Federal Natl. Mtge. Assn. v. Tudor, 185 A.D.3d 905, 906, 128 N.Y.S.3d 546).  “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” (Editorial Photocolor Archives v. Granger Collection, 61 N.Y.2d 517, 523, 474 N.Y.S.2d 964, 463 N.E.2d 365).  Thus, although Echo Ray moved for leave to intervene more than four years after the entry of the order and judgment of foreclosure and sale, the Supreme Court lacked subject matter jurisdiction to entertain the plaintiff's prior motion, inter alia, for leave to amend the caption to substitute the executor of Gadson's estate as a defendant in this action and for leave to enter a default judgment against the defendants (see Federal Natl. Mtge. Assn. v. Tudor, 185 A.D.3d at 906, 128 N.Y.S.3d 546).  Echo Ray was entitled to raise its claim that the court lacked subject matter jurisdiction at any time (see Maspeth Fed. Sav. & Loan Assn. v. Sloup, 123 A.D.3d 672, 674, 998 N.Y.S.2d 409).

Furthermore, Echo Ray established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3];  6501;  Consumer Solutions, LLC v. Charles, 187 A.D.3d 1134, 1135, 131 N.Y.S.3d 626;  US Bank N.A. v. Carrington, 179 A.D.3d 743, 743, 113 N.Y.S.3d 558).  Contrary to the plaintiff's contentions, the fact that Echo Ray obtained its interest in the property after the action was commenced and the notice of pendency was filed does not bar intervention (see Deutsche Bank Natl. Trust Co. v. Allenstein, 201 A.D.3d 783, 785, 162 N.Y.S.3d 389;  US Bank N.A. v. Carrington, 179 A.D.3d at 743–744, 113 N.Y.S.3d 558), and that branch of the plaintiff's prior motion which was for leave to amend the caption to substitute the executor of Gadson's estate as a defendant in this action did not effectuate jurisdiction over her estate (see Federal Natl. Mtge. Assn. v. Tudor, 185 A.D.3d at 906, 128 N.Y.S.3d 546).

Accordingly, the Supreme Court should have granted that branch of the motion of Echo Ray which was for leave to intervene in the action.

CPLR 5015(a)(4) provides that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just” upon the ground of “lack of jurisdiction to render the judgment or order.”  “Unlike a motion predicated upon excusable default (see CPLR 5015[a][1] ), a defendant moving pursuant to CPLR 5015(a)(4) need not demonstrate a reasonable excuse for the default or a potentially meritorious defense” (Bank of Am., N.A. v. City of New York Dept. of Hous. Preserv. & Dev., 211 A.D.3d 661, 663, 181 N.Y.S.3d 110).  Additionally, it is a well-settled principle that a court has the inherent power to grant a motion to vacate its own judgment for sufficient reason in furtherance of justice (see Hudson City Sav. Bank v. Hossain, 181 A.D.3d 572, 574, 121 N.Y.S.3d 85;  56 Marquis v. Mosello, 239 A.D.2d 544, 544–545, 658 N.Y.S.2d 86).

Here, the Supreme Court should have granted those branches of the motion of Echo Ray which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint, as the action was a legal nullity insofar as asserted against Gadson, the sole borrower and property owner as alleged in the complaint (see Federal Natl. Mtge. Assn. v. Tudor, 185 A.D.3d at 906, 128 N.Y.S.3d 546;  Citigroup Global Mkts. Realty Corp. v. LaGreca, 167 A.D.3d 842, 842, 88 N.Y.S.3d 347).  The owner of the property is an indispensable party to a foreclosure action (see RPAPL 1311[1];  Green Tree Servicing, LLC v. Jean, 244 A.D.3d 955, 957, 247 N.Y.S.3d 218).  “The absence of an indispensable party mandates dismissal of the action, and the plaintiff cannot maintain the action as against the other defendants” (Green Tree Servicing, LLC v. Jean, 244 A.D.3d at 957, 247 N.Y.S.3d 218;  see CPLR 1001, 1003).

The plaintiff's remaining contention is without merit.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.