You are here: / / THE PROPERTY TRANSFERRED TO THE DEFENDANT BY WILL UPON THE DEATH OF THE...
, , ,

THE PROPERTY TRANSFERRED TO THE DEFENDANT BY WILL UPON THE DEATH OF THE PROPERTY OWNER; THEREFORE THE ESTATE WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the estate was not a necessary party in this foreclosure action because the property transferred upon the property owner’s death by operation of the will:

Pursuant to a deed dated March 27, 1991, Marjorie Colwell became the owner of certain real property located in Brooklyn (hereinafter the subject property). Colwell died on November 8, 2004. Colwell’s will bequeathed the subject property to the defendant Sonia Gaines, and also named Gaines as the executrix of the estate. …

We disagree with the Supreme Court’s determination that the estate was a necessary party to this action, and that the failure to join the estate warranted vacatur of the order of reference and the judgment of foreclosure and sale and dismissal of the complaint insofar as asserted against Gaines … . Pursuant to RPAPL 1311(1), “necessary defendants” in a mortgage foreclosure action include, among others, “[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein.” Under the circumstances of this case, the estate was not a necessary party to this mortgage foreclosure action. “Generally, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death and not at the time of probate” … . US Bank Trust, N.A. v Gaines,2020 NY Slip Op 07623, Second Dept 12-16-20

 

You might also like
No Demonstration Burst Water Pipe Could Have Been the Result of Negligent Inspection or Maintenance; Municipality Immune from Negligent Design
INFANT PLAINTIFF WAS INJURED WHEN HE INADVERTENTLY SLAPPED A DISPLAY CASE IN THE HALL OF A SCHOOL AND THE GLASS SHATTERED; THERE WAS EVIDENCE A SIMILAR INCIDENT HAD OCCURRED IN THE PAST AND SOME OF THE PANELS IN THE DISPLAY CASE WERE MADE OF SHATTERPROOF PLEXIGLASS; PLAINTIFF’S PREMISES-LIABILITY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
THE PETITIONER, A NEW YORK CITY FIREFIGHTER, DID NOT DEMONSTRATE THE FIRE DEPARTMENT IMPROPERLY DENIED PETITIONER’S REQUEST FOR A RELIGIOUS EXEMPTION FROM THE COVID VACCINE MANDATE; SUPREME COURT REVERSED (SECOND DEPT). ​
THE FORUM SELECTION CLAUSE IN THE NURSING HOME ADMISSION AGREEMENT WAS VALID AND ENFORCEABLE (SECOND DEPT).
DEFENDANT PROPERTY OWNERS BORROWED A LIFT FROM DEFENDANT MIS, PLAINTIFF WAS INJURED USING THE LIFT, THE LABOR LAW 200 CAUSE OF ACTION AGAINST MIS WAS PROPERLY DISMISSED AS INAPPLICABLE, BUT THE NEGLIGENCE ACTION AGAINST MIS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
PLAINTIFFS’ CONCLUSORY ALLEGATION OF FRAUD DID NOT DEFEAT THE AGREEMENT TO ARBITRATE (SECOND DEPT).
THE PROCESS SERVER WAS AWARE DEFENDANT IN THIS FORECLOSURE ACTION WAS IN THE MILITARY; THE “AFFIX AND MAIL” METHOD OF SERVICE DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT).
THE CONDITIONAL ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE DID NOT MEET THE CRITERIA OF CPLR 3216; THEREFORE THE MATTER SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF BANK DID NOT PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL... PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT ON THEIR ADVERSE POSSESSION AND...