Opinion
02-08-2017
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Lorvana CADEUMAG, appellant, et al., defendants.
Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Christopher Villanti of counsel), for appellant. Hogan Lovells U.S. LLP, New York, NY (David Dunn, Chava Brandriss, and Cameron E. Grant of counsel), for respondent.
Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Christopher Villanti of counsel), for appellant.
Hogan Lovells U.S. LLP, New York, NY (David Dunn, Chava Brandriss, and Cameron E. Grant of counsel), for respondent.
RANDALL T. ENG, P.J., RUTH C. BALKIN, L. PRISCILLA HALL, and BETSY BARROS, JJ.
Appeal, as limited by the brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated April 23, 2015, as, in effect, denied that branch of a cross motion purportedly made by the defendant Lorvana Cadeumag which was pursuant to RPAPL 1301(3) to dismiss the complaint in an action entitled U.S. Bank National Association v. Cadeumag, commenced in the Supreme Court, Kings County, under Index No. 899/14.
ORDERED that the appeal is dismissed, without costs or disbursements, and the order dated April 23, 2015, is vacated.
The plaintiff commenced this action to foreclose a mortgage in 2009. The defendant Lorvana Cadeumag died prior to the commencement of the action. In 2014, the plaintiff commenced a second action to foreclose the same mortgage against, among others, the administrator of Cadeumag's estate. Thereafter, in the 2009 action, the plaintiff moved, inter alia, to consolidate the actions under the index number for the 2009 action. Cadeumag purportedly opposed the motion and cross-moved, inter alia, pursuant to RPAPL 1303(3) to dismiss the complaint in the 2014 action. In an order dated April 23, 2015, the Supreme Court, inter alia, in effect, denied the aforementioned branch of the cross motion.
Since a party may not commence a legal action or proceeding against a dead person, the 2009 action was a nullity from its inception, and the plaintiff was instead required to commence an action against the personal representative of the decedent's estate (see Krysa v. Estate of Qyra, 136 A.D.3d 760, 760–761, 24 N.Y.S.3d 534 ; Gorbaty v. Brodsky, 129 A.D.3d 1023, 1024, 12 N.Y.S.3d 235 ; Wendover Fin. Servs. v. Ridgeway, 93 A.D.3d 1156, 1157, 940 N.Y.S.2d 391 ; Marte v. Graber, 58 A.D.3d 1, 1–2, 867 N.Y.S.2d 71 ; Jordan v. City of New York, 23 A.D.3d 436, 437, 807 N.Y.S.2d 595 ). Accordingly, the order appealed from is a nullity, and this Court has no jurisdiction to hear and determine the appeal purportedly taken by the deceased defendant (see Aurora Bank FSB v. Albright, 137 A.D.3d 1177, 1178–1179, 29 N.Y.S.3d 394 ; Rivera v. Bruchim, 103 A.D.3d 700, 700–701, 959 N.Y.S.2d 448 ; Kelly v. Methodist Hospital, 276 A.D.2d 672, 673, 714 N.Y.S.2d 524 ; Cocozzelli, Lerner, Meunkle & Grossman v. Basile, 247 A.D.2d 354, 355, 668 N.Y.S.2d 632 ).