Bethpage Fed. Credit Union v Hughes

[*1] Bethpage Fed. Credit Union v Hughes 2023 NY Slip Op 51000(U) Decided on September 20, 2023 Supreme Court, Suffolk County Hackeling, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2023
Supreme Court, Suffolk County

Bethpage Federal Credit Union, Plaintiff,

against

John S. Hughes; BROOK WOOD AT DELRAY BEACH COMPANY, L.C.; CAPITAL ONE BANK, USA NA; COMMISSIONER OF TAXATION AND FINANCE; CONNETQUOT CENTRAL SCHOOL DISTRICT; FRENDOLPH CONSTRUCTION CORPORATION; STACEY LEWEY; JENNIFER M. ANGONA; LI ANESTHESIOLOGIST PLLC; JST CAPITAL INC; DISCOVER BANK; JENNIFER M. SMITH; BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER; LISA HUGHES; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT; JOHN T. MATHER MEMORIAL HOSPITAL OF PORT JEFFERSON INC; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; PEOPLE OF THE STATE OF NY; SUFFOLK ANESTHESIOLOGY ASSOCIATES PC; JENNIFER CIAVOLELLA, Defendants.



Index No. 040699/2009



Plaintiff's Attorneys:

Ryan D. Mitola, Esq.

50 Lorijean Lane

East Northport, NY 11731

ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC

900 Merchants Concourse, Suite 310

Westbury, NY 11590

Attorney for Eric Hughes:

CHRISTOPHER THOMPSON, ESQ.

33 Davison Lane East

West Islip, NY 11795
C. Stephen Hackeling, J.

Upon the following papers read on these e-filed motions [NYSCEF Doc. No. 55-73]: it is

ORDERED that Eric Hughes's Order to Show Cause to vacate the judgment of foreclosure and sale is denied; and it is further

ORDERED that Plaintiff's cross-motion to amend the Judgment of Foreclosure and Sale and to amend the caption is granted; and it is further

ORDERED that the caption is amended as follows:

X

BETHPAGE FEDERAL CREDIT UNION,

Plaintiff,

against-

ERIC HUGHES, AS ADMINISTRATOR OF THE ESTATE OF JOHN S. HUGHES; BROOK WOOD AT DELRAY BEACH COMPANY, L.C.; CAPITAL ONE BANK, USA NA; COMMISSIONER OF TAXATION AND FINANCE; CONNETQUOT CENTRAL SCHOOL DISTRICT ; FRENDOLPH CONSTRUCTION CORPORATION ; STACEY LEWEY; JENNIFER M. ANGONA; LI ANESTHESIOLOGIST PLLC; JST CAPITAL INC; DISCOVER BANK ; JENNIFER M. SMITH; BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER; LISA HUGHES ; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT ; JOHN T. MATHER MEMORIAL HOSPITAL OF PORT JEFFERSON INC; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE ; PEOPLE OF THE STATE OF NY; SUFFOLK ANESTHESIOLOGY ASSOCIATES PC; JENNIFER CIAVOLELLA,

Defendants.

X

and it is further

ORDEREDthat Plaintiff is directed to file a Notice to County Clerk pursuant to CPLR § 8019(c).

[*2]Procedural Background

Bethpage Federal Credit Union (the "Plaintiff") commenced this residential foreclosure action to foreclose its mortgage on real property located at 589 Spruce Avenue, Sayville, New York 11782 by filing a summons and complaint on October 28, 2009. Inexplicably, this action has been pending for an extraordinarily long period of time but Plaintiff finally obtained a judgment of foreclosure and sale on March 13, 2023 [NYSCEF Doc. No. 49]. Importantly, prior to the entry of the judgment of foreclosure and sale, this Court (G. Asher, J.S.C.) granted summary judgment in Plaintiff's favor by order dated February 27, 2013. In that Order, Justice Asher held that the "answer interposed by defendant JOHN S. HUGHES be and hereby is deemed the usual appearance and waiver in foreclosure, requiring service of only Notice of Sale, Notice of Proceedings for Surplus Monies, and Notice of Discontinuance of Action upon said defendant."

On June 1, 2023, Plaintiff served the Notice of Sale [NYSCEF Doc. No. 53] on the parties to this action including any "occupant" at the Property address; the Notice of Sale advised that Plaintiff scheduled a foreclosure sale for July 11, 2023 at 3:00 p.m. At 8:48 a.m., on the day scheduled for the auction sale, Eric Hughes, by his attorneys, filed an Order to Show Cause to intervene in the action, vacate the judgment of foreclosure and sale and the order of reference and dismissing the action due to Plaintiff's failure to seek a substitution for the deceased defendant John S. Hughes. The Order to Show Cause was signed on July 11, 2023 and the foreclosure sale was cancelled. In support of his Order to Show Cause, Eric Hughes attached Letters Testamentary issued to him on January 24, 2020. In his Affidavit in Support of the Order to Show Cause to intervene, Mr. Hughes fails to explain why he obtained Letters Testamentary within 19 days of his father's death but waited over 3 ½ years for permission to intervene in this action. Thereafter, Plaintiff cross-moved to amend the judgment of foreclosure and sale to substitute Eric Hughes as representative of his father's estate. Eric Hughes filed opposition.

Discussion

The Second Department in Nationstar Mortgage, LLC v. Azcona, 186 AD3d 614, 129 N.Y.S.3d 438 (2d Dept. 2020) held that

"[g]enerally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent.'" (Lambert v Estren, 126 AD3d 942, 943 [2015], quoting Neuman v Neumann, 85 AD3d 1138, 1139 [2011]). However, if 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 DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d 857 [2008]; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436 [2005]).

Here, Justice Asher has already determined that defendant John S. Hughes's answer is stricken and he is only entitled to "service of only Notice of Sale, Notice of Proceedings for Surplus Monies, and Notice of Discontinuance of Action upon said defendant." [NYSCEF Doc. No. 43]. According to the record herein, no appeal was taken of Justice Asher's Order. That order is final and non-appealable. As such, neither John S. Hughes nor his estate representative was entitled to notice of the motion for judgment of foreclosure and sale. His death, therefore, "did not affect the merits of the case." Id. at 616.

Eric Hughes's opposition to Plaintiff's cross motion suggesting that the complaint should [*3]be "amended and served on him to give him an opportunity to file an answer" is unavailing. This argument lacks merit because Eric steps into the shoes of the decedent — which is at a time when the decedent's answer was striken and judgment of foreclosure and sale entered, final, and non-appealable. (see Estate of Schneider v. Finmann, 15 NY3d 306, 907 N.Y.S.2d 119 (2010)("[t]he estate essentially stands in the shoes of a decedent"); (see also Thorburn v. Wende, 235 A.D. 424, 429, 257 N.Y.S. 186, 193 (4th Dept. 1932)("The heirs who claim under him have no better standing here than he would have if he were alive. They stand in his shoes.)

Here, Eric Hughes waited over three years to intervene in this action and then on the day of the foreclosure sale asks this Court to rewind this extraordinarily long case by vacating all prior orders and for permission to file an answer. His only right as an estate representative is to receive proper notice under Justice Asher's order (i.e. "notice of only Notice of Sale, Notice of Proceedings for Surplus Monies, and Notice of Discontinuance of Action.") Eric Hughes, as administrator of the Estate of John S. Hughes, has failed to provide any authority granting him more rights than those of the deceased borrower.

For these reasons, Eric Hughes's Order to Show Cause (mot. seq. no. 007) is denied in its entirety. Plaintiff's cross motion (mot. seq. no. 008) is granted, the stay is vacated, Eric Hughes, as administrator of the Estate of John S. Hughes, is substituted in place and stead of John S. Hughes, and all other provisions contained in the Judgment of Foreclosure and Sale dated March 13, 2023 and entered March 22, 2023 [NYSCEF Doc. No. 49] remain unchanged.

Dated: September 20, 2023

Hon. C. Stephen Hackeling. J.S.C.