MORE ON DEATH OF A PARTY

Wells Fargo Bank, NA v Emma, 2018 NY Slip Op 03728, Decided on May 23, 2018, Appellate Division, Second Department:

"On August 23, 2002, Mary Emma, now deceased (hereinafter the decedent), executed a consolidated note and mortgage on real property located in Staten Island (hereinafter the property) in favor of nonparty Washington Mutual Bank, FA. In January 2006, the decedent transferred title to the property to her son, the defendant Leonard Emma (hereinafter the defendant). On February 18, 2007, the decedent passed away. On December 24, 2013, the plaintiff commenced this action to foreclose the consolidated mortgage against, among others, the defendant, alleging that the plaintiff was the holder of the consolidated note and mortgage. Thereafter, the plaintiff moved to vacate a stay, which was imposed by the Supreme Court due to the death of the decedent, and for leave to enter a default judgment and an order of reference. In an order dated September 3, 2015, the court denied the plaintiff's motion. The plaintiff appeals from the order.

Pursuant to CPLR 1015(a), "[i]f a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (emphasis added). "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 personal representative for the decedent" (Neuman v Neumann, 85 AD3d 1138, 1139). Here, the decedent's death did not divest the court of jurisdiction and warrant the imposition of a stay, since the decedent is not a party in this action (see Sample v Temkin, 87 AD3d 686, 687-688). Moreover, since the decedent made an absolute conveyance of all her interest in the property to the defendant and the plaintiff elected not to seek a deficiency judgment against the decedent's estate, the decedent was not a necessary party to the action (see Wells Fargo Bank, N.A. v Bachmann, 145 AD3d 712, 714; HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673). Accordingly, the Supreme Court should have granted that [*2]branch of the plaintiff's motion which was to vacate the stay."