Gould v Gould

[*1] Gould v Gould 2017 NY Slip Op 50618(U) Decided on May 4, 2017 Supreme Court, Queens County Modica, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2017
Supreme Court, Queens County

Michael Gould, Plaintiff,

against

Junior Gould, GENEIVE GOULD, CARLOS BELGRAVE, BERYL BROWNE AND JOHN DOES AND JANE DOES, numbered 1-10, said names being fictitious as the names of these, Defendants are unknown to Plaintiff, Defendants.



2391/2016



For Plaintiff: Franklin, Gringer & Cohen, P.C., by Steven E. Cohen, Esq., 666 Old Country Road, Garden City, NY 11530

For Defendants GENEIVE GOULD and CARLOS BELGRAVE: Albert Ghunney, Esq., 171-08 Jamaica Ave., Jamaica, New York 11432

For Defendant JUNIOR GOULD: John James, Esq., 305 Broadway, New York, New York 10007
Salvatore J. Modica, J.

Upon the foregoing papers, it is ordered that the motion is determined as follows:

It is undisputed that Browne died subsequent to the commencement of the within action. Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending substitution of a personal representative for the decedent (CPLR 1015[a]; see, U.S. Bank Natl. Assn. v Esses, 132 AD3d 847 [2nd Dept. 2015]; HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673 [2nd Dept. 2013]).

The Appellate Division, Second Department, has stated: "It is well settled that the death of a party stays the action as to him or her pending the substitution of a legal representative, and any determination rendered without such a substitution is generally deemed a nullity." Reed v. Grossi, 59 AD3d 509, 511 (2009), quoting Hicks v. Jeffrey, 304 AD2d 618 (2nd Dept. 2003). Accord, Aurora Bank FSB v. Albright, 137 AD3d 1177, 29 N.Y.S.3d 394 (2nd Dept. 2016); NYCTL 2004-A Trust v. Archer, 131 AD3d 1213 (2nd Dept. 2015); JP Morgan Chase Bank, N.A. v. Rosemberg, 90 AD3d 713, 714 (1st Dept. 2011).

Where a party's death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution. See, e.g., Wells Fargo Bank, N.A. v. Bachmann, 145 AD3d 712 (2nd Dept. 2016) (strict adherence to the requirement that mortgage foreclosure proceedings be stayed pending substitution of representative for deceased mortgagor's estate was not necessary, where other mortgagor, as joint tenant with right of survivorship, automatically inherited deceased mortgagor's ownership interest in the property, and mortgagee waived its right to seek deficiency judgment against deceased mortgagor or her estate).

Here, given the allegations of forgery/fraud against Browne, this Court finds that she is a necessary party to the action and, thus, the action is stayed pending substitution of a personal representative of the estate of the decedent.

Since neither a proper substitution nor a motion for same has been made to date, the court lacks jurisdiction to consider the merits of plaintiff's motion, even to the extent that plaintiff seeks relief against the other defendants in the action. See, Aurora Bank [*2]FSB v Albright, 137 AD3d 1177 (2nd Dept. 2016); NYCTL 2004-A Trust v Archer, 131 AD3d 1213 (2nd Dept. 2015).

Accordingly, the motion is denied without prejudice to renewal upon substitution of a personal representative of Browne's estate.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: May 4, 2017

Jamaica, New York

Honorable Salvatore J. Modica

J.S.C.