Deutsche Bank Natl. Trust Co. v Torres
Annotate this CaseDecided on July 10, 2009
Supreme Court, Suffolk County
Deutsche Bank National Trust Co., Plaintiff,
against
Carmen L. Torres, Ronald Ralph Torres, et al., Defendants.
2999-08
STEVEN J. BAUM, PC
Attys. For Plaintiff
PO Box 1291
Buffalo, NY 14240
WILKIE & WILKIE, ESQS.
Attys. For Def. Carmen L. Torres
33 Hilton Ave.
Hempstead, NY 11550
Thomas F. Whelan, J.
ORDERED that this motion (# 001) by the plaintiff for summary judgment, an order fixing certain defaults and dropping certain defendants as parties and an order appointing a referee to compute is denied except to the limited extent as set forth below; and it is further
ORDERED that the cross motion (# 002) by answering defendant, Carmen L. Torres, for [*2]an order dismissing the complaint and/or granting the cross movant leave to serve and file the amended answer attached to the cross moving papers and other relief, is granted to the extent set forth below.
This action arises out of a promissory note signed by defendant, Ronald Ralph Torres, on April 24, 2006, evidencing a loan in the amount of $180,000.00 which the WMC Mortgage Corp advanced to said defendant on that date. The note was secured by a mortgage executed on April 24, 2008 by the obligor defendant, Ronald Ralph Torres, and defendant, Carmen L. Torres. The plaintiff claims ownership of the note and mortgage under an assignment executed on January 17, 2008 by a nominee of the original lender. Five days thereafter, the plaintiff commenced this action by the filing of a summons and complaint with the Clerk on January 22, 2008.
By its complaint, the plaintiff seeks to foreclose the mortgage described above and a deficiency judgment against defendant, Ronald Ralph Torres, the sole obligor under the note. The plaintiff also demands a judgment pursuant to RPAPL § 1501 declaring the prior recorded encumbrances of defendants, State of New York State, Southside Hospital and Suwalee Alden, to be null and void and extinguished as of record.
In response to plaintiff's service of the summons and complaint upon the known defendants listed in the caption, only defendant, Carmen L. Torres, filed an answer. Defendants, State of New York and Southside Hospital, are alleged to have defaulted in appearing herein while defendant, Suwalee Alden, purportedly filed a notice of appearance with a demand for notice of certain proceedings. The plaintiff further alleges that the obligor defendant, Ronald Ralph Torres, was deceased at the time of the commencement of this action.
By the instant motion, the plaintiff seeks the following relief: 1) summary judgment against the sole answering defendant, Carmen L. Torres; 2) an order dropping as party defendants to this action, the deceased defendant, Ronald Ralph Torres, and the unknown defendants listed in the caption; 3) an order fixing the defaults in answering of the prior encumbrancer defendants; and 4) and order appointing a referee to compute. The motion is opposed by Carmen L. Torres, who cross moves for leave to serve and file an amended answer asserting new affirmative defenses and for dismissal of the complaint.
That "the dead cannot be sued" is a well established principle of the jurisprudence of this state (see Marte v Graber, 58 AD3d 1, 867 NYS2d 71 (1st Dept 2008). It gives rise to the rule that a claimant may not bring a legal action against a person already deceased at the time of the commencement of such action, but instead, must proceed against the personal representative of the decedent's estate (see Jordan v City of New York, 23 AD3d 436, 807 NYS2d 595 [2d Dept 2005]; see also Outing v Mathis, 304 AD2d 670, 757 NYS2d 483 [2d Dept 2003]). Consequently, no action may effectively be commenced against a dead person subsequent to his or her death and prior to the appointment of a personal representative (see Arbalez v Chun Kuei Wu, 18 AD3d 583, 795 NYS2d 327 [2d Dept 2005]; Laurenti v Teatom, 210 AD2d 300, 619 NYS2d 754 [2d Dept 1994]). A complaint must be dismissed as a nullity in cases wherein the [*3]named defendant died before the filing of the summons and complaint (see Marte v Graber, 58 AD3d 1, supra ; Ocwen Fin. Serv. Inc. v Gold, 2003 WL 25776597 [Suffolk County, Sup. Ct 2003]).
The forgoing rules have been applied to mortgage foreclosure actions (see Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, 755 NYS2d 300 [2d Dept 2003]; Ocwen Fin. Serv., Inc. v Gold, 2003 WL 25776597 [Suffolk County, Sup. Ct 2003], supra ). However, due to the unique nature of such actions, courts have held that the personal representative of the estate of a deceased mortgagor, who died intestate, is not a necessary party to a mortgage foreclosure action and that such action may be commenced or continued against the distributees of any such intestate mortgagor (see Winter v Kram, 3 AD2d 175, 159 NYS2d 417 [2d Dept 1957]; see also Salamon Bros. Realty Corp. v Alvarez, 22 AD2d 482, 802 NYS2d 705 [2d Dept 2005]; cf. Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, supra ; GMAC Mtg. Corp. v Tuck, 299 AD2d 315, 750 NYS2d 93 [2d Dept 2002]). Underlying this rule, is the legal maxim that real property owned by an intestate decedent devolves directly to his or her statutory distributees without the necessity of any act by an administrator of his or her estate (see Matter of Roberts, 214 NY 369, 108 NE 562 [1915]; Kraker v Roll, 100 AD2d 424, 474 NYS2d 527 [2d Dept 1984]).
The foregoing rule is inapplicable to decedents who die testate, rather than intestate, as the property of a testator or testatrix passes under the terms of the will, which is effective only upon its probate and the appointment of a personal representative of the estate. The rule is equally inapplicable where, as here, the decedent was personally liable on the mortgage note or bond and the plaintiff in a foreclosure action demands a deficiency judgment. In such cases, the personal representative of the decedent's estate is a necessary defendant in a mortgage foreclosure action (see Countrywide Home Loans, Inc. v Keys, 27 AD2d 247, 811 NYS2d 362 [1st Dept 2006]; Graham v Lawyers Title Ins. Co., 20 AD 440, 46 NYS 1055 [1st Dept 1897]; In re Lust's Estate, 140 Misc 600, 251 NYS 556 [Bronx County, Surrogate's Ct. 1931]).
Here, it is not disputed that the defendant, Ronald Ralph Torres, the sole obligor under the note and a co-mortgagor with defendant, Carmen L. Torres, died on June 3, 2006, more than two years prior to the commencement of this action. It is also undisputed that the plaintiff has interposed a pleaded demand for a deficiency judgment against the deceased defendant, Ronald Ralph Torres. Since this action was commenced against the deceased defendant, Ronald Ralph Torres, subsequent to his death, it is a nullity with respect to the plaintiff's claims against the pre-deceased defendant. The court thus dismisses the plaintiff's claims for foreclosure and sale and for recovery of any deficiency following the public sale of the premises against Ronald Ralph Torres. To reflect such dismissal, the court hereby amends the caption to drop Ronald Ralph Torres as a party defendant. Also dropped as party defendants are the unknown defendants and the caption is likewise amended to reflect same. All future proceedings shall be captioned accordingly.
Those portions of the plaintiff's motion-in-chief, wherein it seeks an order fixing the default of the prior encumbrancer defendants so as to permit the entry of a default judgment [*4]against them on the plaintiff's second cause of action for declaratory relief is denied. To be entitled to a default judgment, the movant must establish, among other things, the existence of facts which give rise to viable claims against the defaulting defendants (see CPLR 3215[f]; CPS Group, Inc. v Gastro Enter., Corp., 54 AD3d 800, 863 NYS2d 764 [2d Dept 2008]; Resnick v Lebovitz, 28 AD3d 533, 813 NYS2d 480 [2d Dept 2006]; Beaton v Transit Fac. Corp., 14 AD3d 637, 789 NYS2d 314 [2d Dept 2005]; Fappiano v City of New York, 5 AD3d 627, 774 NYS2d 773 [2d Dept 2004]). While the quantum of proof necessary to support an application for a default judgment is not exacting and not nearly as onerous as that required for summary judgment, some firsthand confirmation of the facts forming the basis for the claim must be presented (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 760 NYS2d 727 [2003]; Feffer v Malpeso, 210 AD2d 60, 619 NYS2d 46 [2d Dept 1994]). In determining whether a party has a viable cause of action, the court may consider the pleadings and any other proof submitted by the plaintiff (see Beaton v Transit Fac. Corp., 14 AD3d 637, supra ).
Here, the only submissions which may be read as supportive of the plaintiff's demands for an order fixing the defaults of defendants, State of New York, Southside Hospital and Suwalee Alden, each of whom are the holders of prior recorded encumbrances which the plaintiff' seeks to nullify by a judicial declaration of extinguishment, are the proofs service, the affirmation of plaintiff's counsel regarding the defaults in answering and the complaint. While said submissions were sufficient to establish the plaintiff's service of the summons and complaint and defaults in answering, the complaint fails to establish that the plaintiff possesses viable claims for the declaratory relief demanded in its second cause of action. There are no allegations of facts which tend to establish the plaintiff's legal entitlement a judicial extinguishment of the prior recorded encumbrances of the above named defendants pursuant to RPAPL § 1501 or otherwise. Under these circumstances, the court denies the plaintiff's motion for leave to enter a default judgment on its second cause of action against defendants, State of New York, Southside Hospital and Suwalee Alden.
Those portions of the plaintiff's motion wherein it seeks summary judgment dismissing the original answer served by defendant, Carmen L. Torres, are denied as moot, as the court hereby grants the cross motion of said defendant for leave to serve and file the proposed amended answer attached to her cross moving papers. The standard for granting applications for leave to amend pleadings is statutorily prescribed as one which should be "freely granted" (see CPLR 3025[b]). Case authorities provide that in the absence of prejudice or surprise to the non-moving party, leave should be granted without an examination of the merits of the proposed amendments nor any obligation to support them with evidentiary materials (see Rosicki & Rosicki Assocs. PC v Cochems, 59 AD3d 512, 873 NYS2d 184 [2d Dept 2009]; Mackenzie v Croce, 54 AD3d 825 864 NYS2d 474 [2d Dept 2008]; Lucido v Mancuso, 49 AD3d 220, 851 NYS2d 238 [2d Dept 2008]). Defenses that were waived by the defendant's failure to raise them in its original answer or on a pre-answer motion to dismiss may nonetheless be asserted in an amended answer (see CPLR 3211[e]; Ingrami v Rovner, 45 AD3d 806, 847 NYS2d 132 [2d Dept 2007]). However, proposed amendments that are palpably insufficient or patently devoid of merit will be rejected without any showing of surprise or prejudice to non-moving parties (see Vista Prop, LLC v Rockland Eye, Ear, Nose and Throat Assocs. PC, 60 AD3d 846, 875 NYS2d 248 [2d [*5]Dept 2009]).
Upon application of the foregoing principles to the instant case, the court finds that defendant, Carmen L. Torres, is entitled to leave to serve an amended answer in the form of the one attached to her cross moving papers. While it appears that some of the newly asserted affirmative defenses may be more meritorious than others, none appear to "palpably insufficient" or "patently devoid of merit". Although the plaintiff claims both surprise and prejudice if leave to amend were granted, there's been no demonstration of the existence of either (see Falkowski v Krasdale Foods, Inc., 50 AD3d 1091, 858 NYS2d 665 [2d Dept 2008]).
The plaintiff's challenges to the merits of the newly proposed affirmative defenses asserted by defendant, Carmen L. Torres, are equally unavailing. From a reading of the plaintiff's opposing papers, it appears that it is attempting to press its summary judgment application against the proposed amended answer of defendant Torres. Since the standard for determining summary judgment motions differs from the standard applicable to motions for leave to amend pleadings, the court declines the plaintiff's invitation to measure the defendant's cross motion by any standard other than the "palpably insufficient" or "totally devoid of merit" standard provided by CPLR 3025(b). As indicated above, the proposed amendments are not "palpably insufficient" nor "totally devoid of merit" and thus do not warrant a denial of defendant Torres' cross motion for leave to amend her answer.
Under these circumstances, the court grants those portions of defendant Torres' cross motion for leave to serve an amended answer and declares that the proposed amended answer attached to the cross moving papers shall be deemed served 20 days after the date of this order. Those portions of the plaintiff's motion-in-chief, wherein it seeks summary judgment dismissing defendant Torres' original and/or amended answer are denied. Such denial, is however, without prejudice to the interposition of a new motion for the same relief that is aimed at the amended answer for which leave to serve has now been granted. The remaining portions of the plaintiff's motion, wherein it seeks the appointment of a referee, are denied as the plaintiff has not established its entitlement to such relief due to the unresolved nature of the issues joined by defendant Torres' amended answer (see RPAPL § 1321).
The plaintiff has identified the loan at issue in this action as one within the purview of
RPAPL § 1302 and the Laws of 2008, Ch. 472 § 3-a . Since, however, defendant
Torres is not an obligor under the note, a "voluntary settlement conference" of the type
contemplated by the Laws of 2000 Ch. 472 § 3-a, appears to be unwarranted. Should the
parties be interested in such a conference, they are invited to contact the chambers of the
undersigned to arrange the scheduling of same.
DATED: _________________________________________________
THOMAS F. WHELAN, J.S.C.
[*6]
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