McMahon v Wangenstein

[*1] McMahon v Wangenstein 2021 NY Slip Op 51124(U) Decided on December 1, 2021 Supreme Court, Westchester County Giacomo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2021
Supreme Court, Westchester County

Deborah J. McMahon, Plaintiff,

against

Susan J. Wangenstein n/k/a Susan J. Latta; Eleanor Latta, Defendants.



Index No. 59183/2021



For Plaintiff: Jeffrey S. Greene, Esq. of Law Offices of Jeffrey S. Greene, P.C.

For Defendant Susan J. Wangenstein n/k/a/ Susan J. Latta: Robert F. Zerilli, Esq. of Law Office of Robert F. Zerilli
William J. Giacomo, J.

In a partition action, the plaintiff moves for an order appointing a guardian ad litem for defendant ELEANOR LATTA pursuant to CPLR 1201 and 1202, and CPLR 2218:

Papers Considered NYSCEF DOC NO. 37-51

1. Notice of Motion/Affidavit of Deborah J. McMahon/Affirmation of Jeffrey S. Greene, Esq./Exhibits A-H/Affidavit of service

2. Letter/Correspondence to Judge by Robert F. Zerilli, Esq., dated November 19, 2021

3. Letter/Correspondence to Judge by Jeffrey S. Greene, Esq., dated November 23, 2021

4. Letter/Correspondence to Judge by Robert F. Zerilli, Esq., dated November 30, 2021 [FN1]

Factual and Procedural Background

Plaintiff commenced this partition action by filing of a complaint on July 7, 2021. An amended complaint was filed on September 8, 2021. The property at issue is known as 147 Sterling Avenue, Yonkers, New York 10704, which by Deed dated February 12, 2003 and recorded in the Westchester County Clerk's Office on May 28, 2003 as Document control No.: 431290745, the plaintiff and the defendant SUSAN J. WANGENSTEIN n/k/a SUSAN J. LATTA are tenants in common in fee simple ownership, with a life estate in the property held by their mother, defendant ELEANOR LATTA. Plaintiff moves to have a guardian ad litem [*2]appointed for her mother in this action.

On November 19, 2021, Robert F. Zerilli, Esq., counsel for defendant SUSAN J. WANGENSTEIN n/k/a SUSAN J. LATTA advised this Court by letter that defendant ELEANOR LATTA passed away on November 14, 2021. Counsel also asserted that pursuant to law the instant action is stayed due to defendant ELEANOR LATTA's death.

On November 23, 2021, Jeffrey S. Greene, Esq., plaintiff's counsel, advised this Court by letter that the instant motion to have a guardian ad litem appointed for defendant ELEANOR LATTA was withdrawn as moot. Plaintiff also asserted her position that the instant action should not be stayed and should proceed unabated without substitution, pursuant to CPLR 1015(b), as defendant ELEANOR LATTA's life estate was terminated upon her death. Plaintiff further claims that because plaintiff and defendant are tenants in common, defendant ELEANOR LATTA's death does not affect the substantive merits of the case and therefore no formal substitution should be required.

In response to this Court's request, on November 30, 2021, defendant SUSAN J. WANGENSTEIN n/k/a SUSAN J. LATTA's counsel submitted correspondence in response to plaintiff's November 23, 2021 correspondence. Counsel argues that plaintiff's fourth cause of action has claims for reimbursement against defendant ELEANOR LATTA which survive her death, specifically, that the defendant has prevented and denied plaintiff access to the property, defendant's costs of paying the mortgage and taxes are less than the fair market rental value, defendant has improperly used mortgage loan proceeds for purchase of personal property, and defendant has collected rent/payment from her son without sharing the money equally with plaintiff.

Discussion

Generally, where a cause of action survives the death of a party, such death divests the court of jurisdiction until a duly-appointed personal representative is substituted for the deceased party (Paterno v CYC, LLC, 46 AD3d 788, 788 [2d Dept 2007]; see CPLR 1015). However, where a party's demise does not affect the merits of the case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution (id.).

CPLR 1015(b) instructs

Upon the death of one or more of the plaintiffs or defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or against the surviving defendants, the action does not abate. The death shall be noted on the record and the action shall proceed.

Here, the death of defendant ELEANOR LATTA does not affect the merits of this partition action as plaintiff and defendant SUSAN J. WANGENSTEIN n/k/a SUSAN J. LATTA are tenants in common in fee simple ownership. Defendant ELEANOR LATTA simply had a life estate which was extinguished upon her death on November 14, 2021. There are no causes of action asserted by plaintiff which survive defendant ELEANOR LATTA's death (cf. Neuman v Neumann, 85 AD3d 1138 [2d Dept 2011]). Defendant's contention that plaintiff's fourth cause of action includes claims against defendant ELEANOR LATTA is belied when the amended complaint is read in its entirety which asserts specific facts.

Thus, as the causes of action survive as to only the plaintiff and defendant SUSAN J. WANGENSTEIN n/k/a SUSAN J. LATTA, the action should proceed without a substitution and with the decedent's death merely noted on the record (Paterno v CYC, LLC, 46 AD3d 788 [2d Dept 2007]).

Accordingly, it is hereby

ORDERED that plaintiff's motion to for an order appointing a guardian ad litem for defendant ELEANOR LATTA is withdrawn as moot; and it is further

ORDERED that the death of defendant ELEANOR LATTA does not abate this action pursuant to CPLR 1015(b).

The parties are to appear for a preliminary conference on a date and time to be provided.

Dated: December 1, 2021

White Plains, New York

HON. WILLIAM J. GIACOMO, J.S.C. Footnotes

Footnote 1: Jeffrey S. Greene, Esq. submitted further correspondence on November 30, 2021 without express permission from this Court and was therefore not considered.