NYCTL 1998 -2 Trust v Massey

[*1] NYCTL 1998 -2 Trust v Massey 2022 NY Slip Op 51279(U) Decided on December 15, 2022 Supreme Court, Bronx County Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2022
Supreme Court, Bronx County

NYCTL 1998 -2 Trust and the Bank of New York Mellon, Plaintiffs,

against

Mae Lee Massey et al., Defendants.



30798/2017E

Adrian Armstrong, J.

In this tax lien foreclosure action, plaintiff moves to confirm the Referee's Report and for a Judgment of Foreclosure and Sale. The Guardian Ad Litem assigned in this action opposes the motion, raising jurisdictional issues.

This action was commenced in 2017. Defendant, Pasqual Rivas the 50% owner of the property, however, died on November 11, 2007, as now conclusively shown by a death certificate produced by the Guardian Ad Litem. It is well-settled that "[a] party may not commence a legal action or proceeding against a dead person but must instead name the personal representative of the decedent's estate" (Jordan v City of New York, 23 AD3d 436, 437 [2d Dept 2005]). Nor can a party enter a personal judgment against a decedent (Park Ten Assocs. v Rudell, NYLJ, Dec. 11, 1981, at 6, col 1 [App Term, 1st Dept]; see, CPLR 1015[A]). Any orders, issued in such an action, are a nullity (see American Airlines Fed. Credit Union v Costello, 161 AD3d 819 [2nd Dept 2018]).

In this case, the court finds that, before it can obtain jurisdiction in this case, an application must first be made in Surrogate's Court to have an heir appointed administrator for the estate of the decedent (Lambert v Estren, 126 AD3d 942, 943 [2nd Dept 2015] ["In most instances a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate"]).

Accordingly, the plaintiff has several options. It can locate an heir of the deceased and request that such person make an application to the Surrogate for the appointment of an administrator for the decedent's estate (see SCPA 1002). Alternatively, an application can be made in Surrogate's Court to have the Public Administrator or someone else appointed as the representative of the decedent's [*2]estate (see e.g. Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436, 437 [2nd Dept 2005]; see also SCPA 1112]). Once plaintiff obtains an order from the Surrogate's Court for the appointment of a personal representative, then this court will, on the plaintiff's motion, entertain a request for substitution and other related relief.

Given that jurisdiction was never acquired in this action, this Court had no authority to issue rulings binding on the estate of the decedent. For this reason, all prior orders issued in this action are vacated. The plaintiff has leave to make an application in Surrogate's Court to have an appropriate personal representative appointed for the decedent's estate. Once that appointment is secured, the plaintiff has leave to file any motion it deems advisable within a reasonable time period. All proceedings are, accordingly, stayed in this action pending proper substitution pursuant to CPLR 1015 (a).

Accordingly, it is hereby

ORDERED that the plaintiff's motion is denied in its entirety; and it is further

ORDERED that all prior orders issued in this action are vacated.

This is the Decision and Order of the Court.

December 15, 2022
Adrian Armstrong, A.J.S.C.