FEDERAL NATIONAL MORTGAGE ASSOCIATION v. GOOCH (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Mercedes Gooch appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered October 16, 2024.  The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 5015 to vacate all prior orders and judgments issued in the action and to dismiss the second amended complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant Mercedes Gooch which were pursuant to CPLR 5015 to vacate all prior orders and judgments issued in the action and to dismiss the second amended complaint are granted.

In February 2007, the plaintiff's predecessor in interest, Washington Mutual Bank (hereinafter WaMu), commenced this action against Mildred Rodgers to foreclose a mortgage on certain real property located in Queens Village.  Rodgers had died more than 21/212 years prior to the commencement of the action.  In 2007, upon discovering Rodgers’ death, WaMu moved for leave to amend the complaint to substitute Rodgers's unknown heirs as defendants.  In an order dated February 29, 2008, the Supreme Court granted the motion.

In April 2016, WaMu moved for leave to amend the amended complaint to add an additional necessary party, Rodgers's daughter, the defendant Mercedes Gooch (hereinafter the defendant), to the action and to substitute the plaintiff for WaMu. In an order dated January 27, 2017, the Supreme Court granted the motion.  In an order dated October 11, 2017, the court granted the plaintiff's motion for leave to enter a default judgment against the defendant and for an order of reference.  On October 29, 2018, the court entered a judgment of foreclosure and sale.

On September 24, 2024, the defendant moved, inter alia, pursuant to CPLR 5015 to vacate all prior orders and judgments issued in the action and to dismiss the second amended complaint, contending that the action was a nullity.  In an order dated October 16, 2024, the Supreme Court, among other things, denied those branches of the motion.  The defendant appeals.

“A party may not commence a legal action or proceeding against a dead person” (Federal Natl. Mtge. Assn. v. Tudor, 185 AD3d 905, 906 [internal quotation marks omitted];  see Waterfall Victoria Master Fund, Ltd. v Estate of Creese, 217 AD3d 996, 997).  “Thus, when a mortgagor dies prior to the commencement of a foreclosure action, the action is a ‘legal nullity,’ insofar as asserted against the deceased mortgagor” (Federal Natl. Mtge. Assn. v. Tudor, 185 AD3d at 906;  see Citigroup Global Mkts. Realty Corp. v LaGreca, 167 AD3d 842, 842) unless the action is commenced against the personal representative of the mortgagor's estate (see U.S. Bank N.A. v. Cadeumag, 147 AD3d 881, 881;  Krysa v. Estate of Qyra, 136 AD3d 760, 760).  Accordingly, the instant action was a legal nullity insofar as asserted against Rodgers, the sole property owner and mortgagor.

In any event, the amendment of the complaint to substitute Rodgers's unknown heirs at law and of the amended complaint to add the defendant as defendants in the action would not serve to effectuate jurisdiction over Rodgers's estate for purposes of a mortgage foreclosure action (see Waterfall Victoria Master Fund, Ltd. v Estate of Creese, 217 AD3d at 997;  Federal Natl. Mtge. Assn. v. Tudor, 185 AD3d at 906;  Deutsche Bank Natl. Trust Co. v Faden, 172 AD3d 817, 818).  Consequently, the Supreme Court should have granted those branches of the defendant's motion which were pursuant to CPLR 5015 to vacate all prior orders and judgments issued in the action and to dismiss the second amended complaint.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.