HSBC Bank USA, N.A. v Murjani
Annotate this CaseDecided on June 20, 2018
Supreme Court, Kings County
HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1, Plaintiff,
against
Dev Murjani, Mortgage Electronic Registration System, Inc., as Nominee for First Central Savings Bank, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, People of the State of New York, "JOHN DOE" (said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein and any parties corporations or entities; if any, having or claiming an interest or lien upon the mortgaged premises.), Defendants.
27430/2009
Attorney for Plaintiff
Frenkel, Lambert, Weiss, Weisman & Gordon LLP
Shawn Spielberg, Esq.
53 Gibson Street
Bay Shore, NY 11706
(631) 969-3100
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion by plaintiff HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1 (hereinafter the plaintiff), filed on March 2, 2018 with the Kings County Clerk's Office (hereinafter KCCO) under motion sequence number three, for an order: (1) lifting the stay on the instant foreclosure action commenced under Index No.: 27430/2009 (hereinafter the first action) to substitute Abeir Saleh as Temporary Administrator and heir to the estate of Dev Murjani a/k/a Dev G. J. Murjani a/k/a Dev Gregory James Murjani and as Natural Guardian of Summer Murjani a/k/a Summer Saleh, heir to the estate of Dev Murjani a/k/a Dev G. J. Murjani a/k/a Dev Gregory James Murjani; Jonathan Murjani as heir to the estate of Dev Murjani a/k/a Dev G. J. Murjani a/k/a Dev Gregory James Murjani; New York State Department of Taxation and Finance and United States of America as party defendants in the place and stead of defendant Dev Murjani a/k/a Dev G. J. Murjani a/k/a Dev Gregory James Murjani in Index No.: 27430/2009; (2) to discontinue the action filed under Index No.: 27430/2009 solely as against defendant Dev Murjani a/k/a Dev G. J. Murjani a/k/a Dev Gregory James Murjani and for defendant Dev Murjani a/k/a Dev G. J. Murjani a/k/a Dev Gregory James Murjani to removed from the caption; (3) for an order consolidating the actions filed under Index No.: 27430/2009, Index No.: 503699/2014 and Index No.: 508516/2016; (5) to amend the caption substituting the John Doe defendants that were served as party defendants and excising the remaining John Doe defendants from the caption.
The instant motion is unopposed.
Notice of motion
Affirmation in support
Exhibits A-U
Proposed order of reference
BACKGROUND
On October 29, 2009, the plaintiff commenced the first action to foreclosure upon a certain mortgage by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the KCCO.
The complaint in the first action alleges some of the following facts. Dev Murjani (hereinafter Murjani) executed and delivered a note (hereinafter the first subject note) promising to pay the plaintiff $820,000.00 plus interest. Murjani executed and delivered a mortgage (hereinafter the first subject mortgage) in the amount of $820,000.00 which was recorded on April 8, 2005 to secure the first subject note. Plaintiff is also the holder of a mortgage executed by Murjani in the amount of $193,642.43 which was recorded on July 1, 2006, (hereinafter the second subject mortgage). The two mortgages were modified and consolidated by a Consolidation, Extension and Modification Agreement (hereinafter CEMA) executed by Murjani dated May 4, 2006 and recorded on July 1, [*2]2006, to form a single lien (hereinafter the consolidated mortgage). The consolidated mortgage was assigned to HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1. The plaintiff is the owner and holder of the note and mortgage being foreclosed upon. The mortgaged premise is known as 392 10th Street, Brooklyn, New York 11215, Block number 1017 Lot 15. Murjani failed to comply with the conditions of the consolidated mortgage and note by failing to pay the principal and interest due on June 1, 2009 and thereafter. Plaintiff elected to call due the entire amount secured by the consolidated mortgage.
By verified answer dated November 16, 2009, Murjani joined issue on the first foreclosure action. On September 16, 2011, Murjani passed away. All the named defendants in the first action, including Murjani together with the John Doe defendants Steven Kovach, Alexander Nahas, Sarah Nahas, Jason Aleska, Shannon Aleska, Hazel Cintron, Armen Vartanian and Timothy Dorris were duly served with the commencement papers. No other defendant except the People of the State of New York appeared in the first action.
On April 28, 2014, plaintiff commenced a second foreclosure action under Index No.: 503699/2014 by filing a summons, complaint and notice of pendency to foreclosure on the same consolidated mortgage. On May 23, 2016, plaintiff commenced a third foreclosure action under Index No.: 508516/2016 by filing a summons, complaint and notice of pendency to foreclosure on the same consolidated mortgage.
THE PRIOR MOTION
By notice of motion filed on December 21, 2016 under motion sequence number two plaintiff moved for an order: (1) lifting the stay on the instant foreclosure action commenced under Index No.: 27430/2009, the first action; (2) consolidating the first action with a foreclosure action commenced under Index No.: 50669/2014 (hereinafter the second action) and with a foreclosure action commenced under Index No.: 50851/20164 (hereinafter the third action); (3) removing the name and discontinuing the action as asserted against defendant Murjani in the first action; (4) amending the name of the plaintiff in the first action to "HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1"; (5) awarding plaintiff summary judgment; (6) striking the answer interposed on behalf of defendant Abeir Saleh in the second action; (7) awarding a default judgment against all the remaining non-answering defendants in the first, second and third action; (8) appointing a referee to compute the amount due and owing to the plaintiff; and (9) amending the caption by striking the John Doe defendant from the caption and replacing the John Doe defendant with the names of Steven Kovach, Alexander Nahas, Sarah Nahas, Jason Aleska, Shannon Aleska, Hazel Cintron, Armen Vartanian, Timothy Dorris, Susan Nestel, Amanda Spadaccini, Rosa Rivera, Alexander Nahas and Maria Nahas in the first and second action.
By decision and order dated August 17, 2017 (hereinafter the prior order) the Court denied the prior motion.
[*3]LAW AND APPLICATION
The Prior Motion to Lift the Stay Under CPLR 1015
The Court denied plaintiff's prior motion to lift the automatic stay imposed by CPLR 1015 for the following reasons. Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent. Furthermore, any determination rendered without substitution upon the death of a party will generally be deemed a nullity (see CPLR 1015 (a); Aurora Bank FSB v Albright, 137 AD3d 1177 [2nd Dept 2016]).
Under certain circumstances, where a party's demise 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 U.S. Bank Nat. Ass'n v Esses, 132 AD3d 847 [2nd Dept 2015]). In the context of a mortgage foreclosure action, where a deceased defendant has made an absolute conveyance of all his or her interest in the mortgaged premises to another defendant, including his or her equity of redemption, and the plaintiff has either discontinued the action as against the deceased defendant or elected not to seek a deficiency judgment against the deceased defendant's estate, then the deceased defendant is not a necessary party to the action (Id.). Those circumstances were not present in the prior motion.
Instead of making a motion pursuant to CPLR 1021 to substitute Murjani with the representative of Murjani's estate, the plaintiff had attempted to circumvent the automatic stay provision of CPLR 1015 by commencing a second and then a third action to foreclose on the same consolidated mortgage and then moving to consolidate the three foreclosure actions pursuant to CPLR 602 (a). The attempt was unavailing.
The plaintiff had moved to lift the automatic stay caused by Murjani's death pursuant to CPLR 1015 (a) without moving to substitute a representative for Murjani's estate as a defendant (see CPLR 1021), without discontinuing the action insofar as asserted against Murjani, and without representing that it would not seek a deficiency judgment against Murjani's estate. Therefore, in accordance with the reasoning set forth in the matter of U.S. Bank N.A. v Esses (132 AD3d 847 [2nd Dept 2015]), that branch of the plaintiff's prior motion which sought an order lifting the stay imposed pursuant to CPLR 1015 was denied without prejudice.
The Current Motion to Lift the Stay Under CPLR 1015
The plaintiff again seeks, among other things, to lift the automatic stay imposed by CPLR 1015 on the first foreclosure action by the death of Murjani. The plaintiff also seeks again, among other things, to consolidate the instant foreclosure with the second and third action.
There is no dispute that after being duly served with the commencement papers, Murjani interposed a verified answer to the first action dated November 16, 2009. He then died on September 16, 2011. On December 6, 2012, plaintiff's counsel became [*4]aware of Murjani's death and thereafter obtained a copy of his death certificate which was annexed to the prior motion.
As previously indicated, in the Court's prior order, in the context of a mortgage foreclosure action, where a deceased defendant has made an absolute conveyance of all his or her interest in the mortgaged premises to another defendant, including his or her equity of redemption, and the plaintiff has either discontinued the action as against the deceased defendant or elected not to seek a deficiency judgment against the deceased defendant's estate, then the deceased defendant is not a necessary party to the action (Id.).
In the instant motion, plaintiff seeks to cure some of the problems with its prior motion by stipulation not to seek a deficiency judgment against Murjani or his estate. However, Murjani did not make an absolute conveyance of his interest in the mortgaged premises to another defendant, including his equity of redemption. Therefore the stipulation not to seek a deficiency judgment, standing alone, does not provide a sufficient basis to lift the automatic stay provision of CPLR 1015.
There are, however, other problems with the instant application. When the motion for substitution is made by a party other than the estate of the decedent, the motion papers must be served on the decedent's personal representative with all the formalities that CPLR Article 3 prescribes for service of process (Horseman Antiques, Inc. v Huch, 50 AD3d 963 [2nd Dept 2008]); see also GMAC Mortgage Corp. v Tuck, 299 AD2d 315, [2nd Dept 2002]). In the instant motion it is the plaintiff who is seeking to substitute Abeir Saleh as temporary administrator and heir to the estate of Murjani in place and stead of defendant Murjani. Abeir Saleh is not a defendant in the first action. The affidavit of service of the instant motion papers aver that service was made on Abeir Saleh by mailing the papers to Saleh's counsel. The motion papers do not allege or demonstrate that the instant motion was served upon Abeir Saleh with the formalities that CPLR Article 3 prescribes for service of process. In the absence of proper service, no personal jurisdiction was acquired over the personal representative, and therefore, Abeir Saleh could not be substituted as a party defendant. Should plaintiff attempt to do the substitution again, it should do so by order to show cause and not by notice of motion.
Motion to Consolidate the Three Actions
CPLR 602 (a) provides as follows: "when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."
Inasmuch as the first action was under a stay pursuant to CPLR 1015 when the instant motion was made and will remain under a stay pursuant to the instant decision and order, the motion to consolidate the first action with the second and the third action must be denied as it improperly seeks to violate the stay. Accordingly, the motion to [*5]consolidate the first, second and third foreclosure actions pursuant to CPLR 602 (a) is also denied without prejudice.
Motion to Discontinue the Action against Murjani
As previously stated, although the plaintiff is moving to discontinue the instant action against Murjani, it has not properly moved to substitute a representative for Murjani's estate as a defendant pursuant to CPLR 1021. Applying the reasoning set forth in the matter of U.S. Bank N.A. v Esses (132 AD3d 847 [2nd Dept 2015]), this branch of the plaintiff's motion which seeks an order discontinuing the action as against Murjani and striking his name from the caption is denied without prejudice.
As previously indicated, the first action was under a stay pursuant to
CPLR 1015 at the time the motion was made and remains under a stay pursuant to the instant decision and order. Furthermore, the three actions were not and are not now consolidated. Accordingly, the motion is improper as applied to the first cause of action and is not properly before the court as applied in the second and third action. The motion is denied without prejudice.
Motion to Strike and Replace the John Doe Defendant
The motion to strike the John Doe defendant and replace it with the names of Steven Kovach, Alexander Nahas, Sarah Nahas, Jason Aleska, Shannon Aleska, Hazel Cintron, Armen Vartanian, Timothy Dorris is denied without prejudice.
For the reasons previously indicated the motion is improper as applied to the first cause of action and is not properly before the court as applied in the second and third action. The motion is denied without prejudice.
CONCLUSION
HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1 for an order lifting the stay on the first foreclosure action commenced under Index No.: 27430/2009 is denied.
HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1 for an order pursuant to CPLR 602 (a) consolidating the foreclosure action commenced under Index No.: 27430/2009, with the foreclosure actions commenced under Index No.: 50669/2014 and Index No.: 50851/20164 is denied.
HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1 motion for an order removing defendant Murjani from the foreclosure action commenced under Index No.: 27430/2009 and discontinuing the action against him alone is denied.
HSBC Bank USA, National Association as Trustee, for Nomura Asset-Backed Certificates, Series 2006-AF-1 motion for an order striking the John Doe defendant and replacing it with certain named defendants is denied.
The foregoing constitutes the decision and order of this court.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
