Opinion
Index No. CV14-0130
01-28-2022
CIT BANK N.A., Plaintiff, v. Michael DISKIN, as Administrator of the Estate of Paul H. Curtis a/k/a Paul Curtis, Deceased, John P. O'Neill, Commissioner of the Essex County Department of Social Services, Horace Nye Nursing Home, Ruth Perlmutter Heir-at-Law to the Estate of Paul H. Curtis a/k/a Paul Curtis, Deceased, David Washburn Heir-at-Law to the Estate of Paul H. Curtis a/k/a Paul Curtis, Deceased, United States of America o/b/o Internal Revenue Service, New York State Department of Taxation and Finance, "John Doe," "Richard Doe," "Jane Doe," "Cora Coe," "Dick Moe," and "Ruby Poe," the Six, Defendants Last Named in Quotation Marks Being Intended to Designate Tenants or Occupants in Possession of the Herein Described Premises or Portions Thereof, If Any There Be, Defendants.
Bronster LLP, New York (Alexandra C. Mink of counsel), for plaintiff. Russell, McCormick & Russell, Elizabethtown (Andrew J. Russell of counsel), for William Frawley, as Executor of the Estate of Paul H. Curtis a/k/a Paul Curtis.
Bronster LLP, New York (Alexandra C. Mink of counsel), for plaintiff.
Russell, McCormick & Russell, Elizabethtown (Andrew J. Russell of counsel), for William Frawley, as Executor of the Estate of Paul H. Curtis a/k/a Paul Curtis.
Robert J. Muller, J.
On January 12, 1995, Paul H. Curtis (hereinafter decedent) and his wife, Myra A. Curtis, executed a Loan Agreement and Note (hereinafter the note) with Transamerica HomeFirst, Inc. in the maximum principal amount of $64,442.75, which note was secured by a reverse mortgage on real property located at 219 Corlear Drive in the Town of Willsboro, Essex County. Following a series of assignments, plaintiff became the holder of the note and mortgage. Decedent's wife passed away in 2003. He then stopped using the property as his principal residence in 2013, which constituted a default under the terms of the note and reverse mortgage. Plaintiff commenced this foreclosure action in March 2014.
On August 1, 2015, decedent passed away. Plaintiff subsequently filed a petition in the Surrogate's Court of Essex County to appoint Michael Diskin — the Essex County Treasurer — as administrator of decedent's estate for purposes of this foreclosure. Limited Letters of Administration were issued to Diskin on October 17, 2016 and, in January 2019, plaintiff moved to (1) file and serve a supplemental summons and amended complaint which substitutes Diskin, as administrator of decedent's estate, as defendant in the place and stead of decedent, as well as names decedent's known heirs — namely, Ruth Perlmutter and David Washburn — and unknown heirs as defendants; (2) serve decedent's unknown heirs by publication; and (3) appoint a guardian ad litem and military attorney for decedent's unknown heirs. This motion was granted in its entirety by Order dated June 11, 2019, with William A. Finucane, Esq. appointed as guardian ad litem and military attorney for decedent's unknown heirs.
Plaintiff filed a motion for the appointment of a guardian ad litem for decedent in December 2014, which motion was granted by Order dated May 7, 2015. Reginald H. Bedell, Esq. was appointed as guardian ad litem for decedent, but subsequently relieved of the appointment upon decedent's passing.
Plaintiff initially filed a motion for an Order of Reference in May 2018, but this motion was withdrawn based upon the Court's observation that Diskin had not yet been substituted for decedent.
Meanwhile, on February 5, 2019 decedent's last will and testament was admitted to probate in the Surrogate's Court of Essex County and Letters Testamentary were issued to William Frawley, the executor of the will. After discovering this, plaintiff served Frawley with the summons and complaint on October 7, 2019. Frawley then served an answer on October 22, 2019. Presently before the Court is plaintiff's motion to (1) file and serve a second supplemental summons and second amended complaint which substitutes Frawley, as the executor of decedent's will, as defendant in the place and stead of Diskin; (2) deem service of the summons and complaint on Frawley timely, nunc pro tunc ; (3) grant summary judgment to plaintiff as against Frawley; (4) grant a default judgment as against all non-appearing defendants; and (5) appoint a referee to compute the amount due and owing under the reverse mortgage. Each aspect of the motion will be addressed ad seriatim.
Turning first to plaintiff's request to file and serve a second supplemental summons and second amended complaint which substitutes Frawley, as the executor of decedent's will, as defendant in the place and stead of Diskin, inasmuch as plaintiff has reserved its right to seek a deficiency judgment, it is undisputed that Frawley is a necessary party to this action (see RPAPL 1311 [1] ; Bank of NY Mellon v Buckowitz , 164 AD3d 730, 733 [2018] ; Countrywide Home Loans, Inc. v Keys , 27 AD3d 247, 247 [2006] ). Indeed, Frawley does not oppose his substitution in the place and stead of Diskin. That being said, plaintiff has failed to submit copies of the proposed second supplemental summons and second amended complaint.
CPLR 3025 (b) was amended, effective January 1, 2012, to provide that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading." To the extent that plaintiff has failed to comply with this requirement, the first aspect of the motion must be denied.
Turning now to the second aspect of the motion, plaintiff contends that service of the summons and complaint on Frawley should be deemed timely, nunc pro tunc , under CPLR 306-b. This contention, however, is without merit. CPLR 306-b provides that "[i]f service is not made upon a defendant within the time provided in this section, the court [may], ... upon good cause shown or in the interest of justice, extend the time for service" [emphasis added]. To the extent that Frawley is not a defendant, this section is not applicable.
In Perez v Paramount Communications (92 NY2d 749 [1999] ), the Court of Appeals held that "[t]he joinder of an additional defendant by the filing of a supplemental summons and amended complaint may be accomplished only with prior judicial permission, and noncompliance renders the pleadings jurisdictionally defective" ( id. at 753 ). In so holding, the Court of Appeals referenced CPLR 1003, which provides that "[p]arties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared." CPLR 1015 (a), which applies to substitution upon death, likewise provides that "[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties."
Under the circumstances, service of the summons and complaint on Frawley in October 2019 was a nullity. This is in fact precisely the argument made by Frawley in opposition to this aspect of the motion. The Court therefore finds that the second aspect of the motion must also be denied.
Briefly, service of the summons and complaint on Frawley was improper in any event given the June 2019 Order granting plaintiff's motion to file and serve a supplemental summons and amended complaint.
With respect to the third aspect of the motion, because service of the summons and complaint on Frawley in October 2019 was a nullity, issue has not yet been joined and plaintiff therefore is not entitled to summary judgment against him (see CPLR 3212 [a] ).
Turning now to the fourth aspect of the motion, the Court finds that plaintiff is not entitled to a default judgment against all non-appearing defendants. Indeed, at this point it is unclear who the "non-appearing defendants" are. The following affidavits of service are submitted by plaintiff in support of its request for a default judgment:
(1) an affidavit of service of the summons and complaint on the United States of America, on behalf of the Internal Revenue Service, on October 4, 2019;
(2) an affidavit of service of the summons and complaint on Ruth Perlmutter on October 8, 2019;
(3) an affidavit of service of the summons and complaint on Watchtower Bible and Tract Society of New York (hereinafter Watchtower Bible) on October 8, 2019;
(4) an affidavit of service of the summons and complaint on the New York State Department of Taxation and Finance on October 8, 2019; and
(5) an affidavit of service of the summons and complaint on David Washburn on October 10, 2019.
The United States filed a notice of appearance on October 16, 2019 waiving service of all but, inter alia , the notice of sale and report of sale.
Much like the affidavit of service submitted relative to Frawley, each of these affidavits demonstrate service of the summons and complaint — not the supplemental summons and amended complaint, which should have been served in accordance with the June 2019 Order. Furthermore, Watchtower Bible is not a defendant in this action. Plaintiff has never moved to amend the complaint to add Watchtower Bible as a defendant, nor does plaintiff make any mention of Watchtower Bible in the instant motion. Finally, notwithstanding the submission of affidavits of service for Perlmutter and Washburn, it is unclear whether plaintiff is still pursuing the action against them. It is likewise unclear whether plaintiff is still pursuing the action against decedent's unknown heirs, as well as whether the guardian ad litem and military attorney remains necessary. Plaintiff has not filed proof of publication with respect to these unknown heirs, nor has the guardian ad litem and military attorney been served. Plaintiff in fact has yet to even file the supplemental summons and amended complaint.
The June 2019 Order directed that the supplemental summons and amended complaint be filed before the first day of publication, with the first day of publication to be within 30 days of the date of the Order.
With respect to the last aspect of the motion, plaintiff is certainly not entitled to the appointment of a referee. Whether deliberately or unwittingly, plaintiff has played very fast and loose with the rules of civil procedure in this State — and the several procedural defects outlined above must be addressed before a referee can be appointed.
Based upon the foregoing, plaintiff's motion is denied in its entirety.
To the extent not specifically addressed herein, the parties’ remaining contentions have been examined and are either academic or without merit.
Therefore, having considered NYSCEF documents 87 through 118 and 121 through 134, and oral argument having been held on January 24, 2022 with Katherine E. McNamara, Esq. appearing on behalf of plaintiff and Andrew J. Russell, Esq. appearing on behalf of William Frawley, it is hereby
ORDERED that plaintiff's motion is denied in its entirety.
The original of this Decision and Order has been e-filed by the Court. Counsel for William Frawley is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.