Board of Mgrs. of the Wingate Condominium v Ruf
Annotate this CaseDecided on June 15, 2012
Supreme Court, Queens County
The Board of Managers of the Wingate Condominium
against
William Ruf, et al., Defendants.
12770/2011
For the Plaintiff:
Santamarina & Associates, by Katherine Hwang, Esq., 260 Madison Avenue, New York, NY 10016
For the Defendant:
Bailey & Sherman, P.C., by Edward G. Bailey, Esq., 42-21 Douglaston Parkway, Douglaston, NY 11363
Charles J. Markey, J.
This is an action to foreclose a lien on a condominium unit allegedly owned by named defendant William Ruf in the building known as the Wingate Condominium at 84-25 Elmhurst Avenue, Elmhurst, in Queens County, New York. The subject lien is for unpaid common charges (Real Property Law § 339-z), and was filed by plaintiff in the Office of the Register of the City of New York on October 30, 2009 (Real Property [*2]Law § 339-aa.)
Plaintiff alleges that William Ruf is the record owner of condominium unit 5B pursuant to a deed dated November 29, 1985 and recorded on December 31, 1985. It is undisputed, however, that William Ruf died on August 14, 1988, long before the commencement of this action. Since it is well established that an action cannot be instituted against a dead person, this action from its inception was a nullity with regard to William Ruf (see, Marte v Graber, 58 AD3d 1, 3 [1st Dept. 2008]; Jordan v City of New York, 23 AD3d 436 [2nd Dept. 2005]; see also, Rocha v Figueiredo, 50 AD3d 876 [2nd Dept. 2008]). Substitution of the personal representative of the estate of the decedent is not available in this situation since decedent William Ruf was never a party to the action (CPLR 1015[a]; CPLR 1021; see, Marte, 58 AD3d at 4, supra; Batista v Rivera, 5 AD3d 308 [1st Dept. 2004]).
Although causes of action against other properly named and served parties would not be affected by the nullity of the action against a named defendant who pre-deceased the commencement of the action (see, e.g., Rocha, 50 AD3d at 877, supra; Jordan, 23 AD3d at 437, supra), the only other parties named herein are designated by fictitious names which, under the circumstances, are inadequate to sustain the action.
The use of a fictitious name such as "John Doe" or "Jane Doe" in the caption of a summons and complaint is authorized when a plaintiff has a cause of action against a defendant whose name is unknown to the plaintiff (CPLR 1024), provided that plaintiff has used due diligence in seeking to ascertain the defendant's name prior to the commencement of the action (see, Harris v North Shore Univ. Hosp. at Syosset, 16 AD3d 549 [2nd Dept. 2005]). A defendant whose name is unknown must be described in such a way as to fairly apprise the party that he or she is an intended defendant (see, Thas v Dayrich Trading, Inc., 78 AD3d 1163 [2nd Dept. 2010]; Carmer v Odd Fellows, 66 AD3d 1435 [4th Dept. 2009]) The intended defendant named as a "John Doe" must also be served with process by an authorized method under CPLR article 3 (see, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1024).
Plaintiff herein asserts that its use of "John Doe" and "Jane Doe" "predicts the possibility" that there might be other parties to be added and now seeks to add Andrew Ruf and Julie Ruf, the children and heirs of William Ruf, and Fred Kusterer, the Executor of the Estate of William Ruf. The summons and complaint, however, did not fairly apprise the heirs of William Ruf or the executor of William Ruf's estate that they were intended defendants in this matter. In fact, they could not have been the intended defendants since plaintiff's attorneys advise that it was only upon conducting a [*3]foreclosure lien search on or about July 26, 2011, following the commencement of the action, that they discovered that William Ruf was deceased.[FN1]
Furthermore, the affidavits of service of process on the fictitious defendants, submitted only in plaintiff's reply papers, demonstrate, on the face of each document, that service was not properly effectuated on "John Doe" or "Jane Doe." The summons and complaint purportedly were served by the "nail and mail" method of CPLR 308(4), but the proof of due diligence necessary to permit such service is insufficient as a matter of law (see, Gray v Giannikios, 90 AD3d 836 [2nd Dept. 2011]; see, e.g., McSorley v Spear, 50 AD3d 652 [2nd Dept.], lv. to appeal denied, 10 NY3d 715 [2008]; County of Nassau v Long, 35 AD3d 787 [2nd Dept. 2006]; County of Nassau v Letosky, 34 AD3d 414 [2nd Dept. 2006]).
As a result of the improper commencement of the action against decedent and the deficiencies in naming the fictitious parties, the entire action is jurisdictionally defective. There is, therefore, no pending action in which to amend the pleadings or add parties. The Court also notes that the plaintiff has not provided a proposed amended complaint stating claims against the parties it seeks to add, or any proof that Fred Kusterer is the executor of the estate of William Ruf and that the executor, Andrew W. Ruf and Julie M. Ruf are fee owners.
Upon the foregoing papers, the plaintiff's motion for a judgment of foreclosure is denied, and the defendant's cross motion to dismiss and to cancel the lis pendens is granted.
Accordingly, the action is dismissed without prejudice to the commencement of a new action consistent herewith. Based upon the disposition herein, cancellation of the notice of pendency filed in this action on October 24, 2011, is mandated. (CPLR 6514[a]). The County Clerk of Queens County is directed, upon service of a copy of this order and the payment of any fees which may be due and owing, to cancel the notice of pendency filed in this action against the property located at 84-25 Elmhurst Avenue, Unit 5B, Elmhurst, New York, and indexed under Section 9, Block 1518 and Lot 1100.
The Clerk shall enter upon the margin of the record a notice of cancellation referring to this order.
The foregoing constitutes the decision, opinion, and order of the Court. [*4]
______________________________________
J.S.C.
Dated: June 15, 2012
Footnotes
Footnote 1:
While Andrew Ruf may have been apprised that he was an intended defendant as an occupant of the subject premises, it is clear that plaintiff seeks to include him as an heir and owner, not merely as an occupant. In any event, the record does not show any effort by plaintiff to ascertain the name of any occupant of the unit.
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