NYCTL 2009-A Trust v 706 Fourth Ave., LLC
Annotate this CaseDecided on March 25, 2013
Supreme Court, Kings County
NYCTL 2009-A Trust, and THE BANK OF NEW YORK, as Collateral Agent and Custodian for NYCTL 2009-A TRUST, Plaintiffs,
against
706 Fourth Avenue, LLC, CIRO NOCERINO TEDCO REALTY CORP., HOWARD N. STERN, 706 FOURTH AVENUE FUNDING CORP., and "John Doe No.1" through "John Doe No.100," inclusive, the names of the last 100, defendants being fictitious, the true names of said defendants being unknown to the plaintiff, it being intended to designate fee owners, tenants or occupants of the lien premises and/or persons or parties having or claiming an interest in or a lien upon the subject property, if the aforesaid individual defendants are living, and if any or all of said individual defendants be dead, their heirs at law, next of kin, distributees, executors, administrators, trustees, committees,devisees, legatees, and the assignees, lienors, creditors and successors in interest of them, and generally all persons having or claiming under, by, through, or the said defendants named as a class, of any right, title, or interest in or lien upon the premises described in the complaint herein, Defendants.
81220/10
Attorney for Plaintiffs
Leonid Krechmer, Esq.
Windels Marx Lane & Mittendorf, LLP
156 West 56th Street New York, New York 10019
(212) 237-1115
Francois A. Rivera, J.
On March 25, 2013, plaintiffs NYCTL 2009-A Trust and the Bank of
New York (hereinafter "plaintiffs" of "movants") submitted an order to show cause for the Court's signature and direction regarding service. The underlying relief sought was (1) an order pursuant to CPLR 1015 and 1021 appointing a temporary administrator for the estate of Ciro Nocerino in accordance with §11-335 of the Administrative Code and Charter of New York City; and (2) an order amending the caption to add the estate of Ciro Nocerino instead of the defendant Ciro Nocerino.
BACKGROUND
On March 31, 2010, plaintiff commenced the instant tax lien foreclosure action against a piece of real property located at Block 642, Lot 41 with the address of 706 4th Avenue, Brooklyn, New York, (hereinafter the subject property) by filing a summons and complaint with the Kings County Clerk's office.
Plaintiffs first application for an order to show cause for the same relief was rejected by Justice Battaglia with leave to renew upon a showing of due diligence to support service by publication under CPLR 315.
Plaintiffs second application for an order to show cause for the same relief was denied by this court because the affidavit of due diligence submitted in compliance with Justice Battaglia's order was neither signed nor notarized. This Court directed that any attempt to renew the application be supported by a memorandum of law addressing whether the action and relief sought by the petitioner was abated or extinguished by the death of Ciro Nocerino. Plaintiffs submitted a memorandum of law with the instant order to show cause in compliance with this court's order.
MOTION PAPERS
Plaintiffs' motion papers consists of the order to show cause, an affirmation of their counsel and eight annexed exhibits labeled A through H. Exhibit A is described as the Tax Lien Certificate. Exhibit B is a copy of the summons and complaint. Exhibit C is a copy of the notice of pendency. Exhibit D and E are described as two separate mortgages against the subject property that where recorded in the office of the City Register of the City of New York and reflected Ciro Nocerino as mortgagee. Exhibit F contains, among other things, an affidavit of plaintiffs' due diligent efforts to locate Ciro Nocerino. Also included are documents evidencing plaintiffs' search efforts as well as a copy of Ciro Nocerino's death certificate. Exhibit G is part of plaintiffs' first application for the same relief which was denied by Justice Battaglia. Exhibit H is part of plaintiffs' second application for the same relief which was denied by this court. Plaintiffs have also submitted a memorandum of law and a proposed order.
LAW AND APPLICATION
Plaintiffs ultimately would like to substitute defendant Ciro Nocerino with a representative of his estate. In the instant application their intent is to have a temporary administrator appointed for that purpose. The substitution that is mandated by CPLR 1015(a) applies only when the particular cause of action survives the death of the plaintiff or defendant. If the claim abates as a result of a party's death, no substitution is required because the cause of action is automatically extinguished (Vincent C. Alexander Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, CPLR C1015:2. Survival of a Cause of Action).
"It is well settled that the death of a party divests a court of jurisdiction to conduct [*2]proceedings in an action until a proper substitution has been made pursuant to CPLR 1015 (a) . . . , and any order rendered after the death of a party and before the substitution of a legal representative is void" (see Matter of Sills v Fleet Natl. Bank, 81 AD3d 1422, 1423 [4th Dept 2011] citing Griffin v Manning, 36 AD3d 530, 532 [1st Dept 2007]). Only "under special circumstances,' such as where there has been active participation in the litigation by the personal representative who would have been substituted for the decedent" is the rule waived (id.). It is also well established that the dead cannot be sued (Marte v Graber, 58 AD3d 1 [1st Dept 2008]).
"The substitution provisions of CPLR 1015(a) and 1021 presuppose that an action was commenced against a living personsomeone who has the legal capacity to be "a party"and the action was pending at the time such party died. In Marte v Graber, 2008, 58 AD3d 1 [1st Dept 2008], the putative defendant was already dead at the time the summons and complaint were filed, rendering the action a nullity from the outset as to that defendant. Since the decedent was never a party to the action, the substitution provisions of CPLR 1015 and 1021 were unavailable to correct the defect, and dismissal was required (see also Wendover Financial Services v Ridgeway, 93 AD3d 1156 [4th Dept 2012]). A personal representative should have been named as the defendant at the outset." (Vincent C. Alexander Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, CPLR C1015:3. Substitution Upon Death of a Party).
Similarly, in the case of Rivera v Bruchim, 100 AD3d 700 [2nd Dept 2013], the putative defendant was already dead at the time the summons and complaint were filed, rendering the action a nullity from the outset as to that defendant.
Plaintiffs filed the instant summons and complaint on March 31, 2010. Plaintiffs' affidavit of due diligence reveals that Ciro Nocerino passed away on May 7, 2003, nearly seven years prior to the date that the instant action was commenced. Plaintiffs seek an order permitting service by publication on Ciro Nocerino's next of kin of the instant order to show cause. The order to show cause ultimately seeks an order pursuant to CPLR 1015 and 1021 and in accordance with §11-335 of the Administrative Code and Charter of New York City appointing a Temporary Administrator for the Estate of Ciro Nocerino; and amending the caption to add the estate of Ciro Nocerino instead of defendant Ciro Nocerino.
For the foregoing reasons, the complaint as against defendant Ciro Nocerino is a nullity that cannot be cured. The court has no jurisdiction to entertain the motion.Therefore, plaintiffs instant request for an order to show is denied and the complaint as against defendant Ciro Nocerino is dismissed.
The foregoing constitutes the decision and order of this court.
Enter_____________________________x
J.S.C
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