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  • Posted on: Aug 14 2020

Litigation can be a long and drawn out process.  As a result, parties sometimes die during the pendency of a lawsuit.  In such a case, CPLR § 1015 – Substitution Upon Death – is instructive and provides:

(a) Generally.  If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.

(b) Devolution of rights or liabilities on other parties.  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.

The procedure for the substitution of a party, whether due to death or otherwise, is set forth in CPLR § 1021 and the extensions of time necessary to tend to the procedural steps involved with the substitution of a party are governed by CPLR § 1022.

Generally, “[t]he death of a party divests the court of jurisdiction to conduct proceedings in an action, the action is stayed as to him or her pending substitution of a legal representative, and any determination rendered without such a substitution is deemed a nullity.”  Stancu v. Hyang-Oh, 74 A.D.3d 1322, 1322 – 23 (2nd Dep’t 2010) (citations omitted).  For example, in Danzig Fishman & Decea v. Morgan, 123 A.D.3d 968 (2nd Dep’t 2014), plaintiff law firm sued a former client for unpaid legal fees.  Plaintiff’s unopposed motion for summary judgment was granted by the motion court after defendant’s death.  Once a representative of defendant’s estate was appointed, a motion to vacate the judgment was granted and, on plaintiff’s appeal, the Second Department affirmed.  Relying on, inter alia, Stancu, the Danzig Court found that the motion court’s grant of summary judgment to plaintiff “was a nullity, as it was after [defendant’s] death and before the substitution of a legal representative.”  Danzig, 123 A.D.3d at 969.

Sometimes, however, “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.”  U.S. Bank National Assoc. v. Esses, 132 A.D.3d 847, 847 (citations omitted).  In Esses, property was owned by a grandfather and grandson as joint tenants with rights of survivorship.  When the grandfather, who was the obligor on the note and mortgage, defaulted, the lender commenced a foreclosure action.  Shortly thereafter, the grandfather died and the trial court stayed all proceedings.  The lender appealed.  The Second Department affirmed.

The Court in Esses recognized that “[i]n the context of a mortgage foreclosure action, where a deceased 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 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.”  Esses, 132 A.D.3d at 848 (citations omitted).  However, while the grandson, “as the surviving joint tenant, automatically inherited the subject property from [his grandfather], the plaintiff has neither moved to substitute a representative for [grandfather’s] estate as a defendant (see CPLR 1021), discontinued the action insofar as asserted against [grandfather], nor represented that it would not seek a deficiency judgment against [grandfather’s] estate.  Esses, 132 A.D.3d at 848 (some citations omitted).  Accordingly, the motion court‘s stay was affirmed.

On August 12, 2020, the Second Department decided Nationstar Mortgage, LLC v. Azcona.  The lender in Azcona commenced a mortgage foreclosure action and the defendants were served with process in 2012 but failed to answer the complaint or appear in the action.  One of the defendants died in 2015 and, in 2016, the court entered a default judgment of foreclosure and sale.  In 2017, the remaining defendants moved pursuant to CPLR § 5015(a)(4) to vacate the default judgment because “[decedent] had died prior to its entry and, as such, the court was divested of jurisdiction until a legal representative was substituted for [decedent].”  The Second Department affirmed the denial of the motion.  In so doing, the Court recognized the general rule that the death of a party divests the court of jurisdiction and proceedings are stayed pending the appointment of a representative of the estate.  The court also noted that a stay is unnecessary when a party’s death “does not affect the merits of the case”.  

The Azcona Court affirmed the denial of the vacatur motion.  The Court found that defendants, including the decedent, were properly served with process and defaulted three years prior to decedent’s death. Accordingly, [s]ince [decedent] defaulted in answering or appearing three years before his death, neither he nor any successor in interest was entitled to notice of the judgment of foreclosure or of the ensuing sale of the subject property.”  (Citations omitted.)  Therefore, the Court “agreed with the Supreme Court that Azcona’s death did not affect the merits of this action, and that there was no need to strictly adhere to the requirement for a stay pending substitution.” (Citations omitted.)  

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