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THE ESTATE OF THE HUSBAND WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION; THE PROPERTY PASSED TO THE WIFE UPON THE HUSBAND’S DEATH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the husband’s (Thomas’s) estate was not a necessary party in this foreclosure action because the property passed to the decedent’s wife (Judy) upon Thomas’s death:

… [T]he plaintiff’s submission of the deed and Thomas’s death certificate established prima facie that Thomas and Judy had held the subject property as a married couple, and that they remained married at the time of his death. Therefore, Thomas’s death “result[ed] in the defeasance of the deceased spouse’s coextensive interest in the property” … , and the surviving spouse automatically inherited his ownership interest in the property. Moreover, the plaintiff explicitly provided that it would not seek a deficiency judgment against Thomas’s estate … . Based upon the foregoing, the plaintiff established that Thomas’s estate was not a necessary party to foreclosure and the plaintiff was entitled to discontinue the action against Thomas, remove his name from the caption, and to vacate the stay which arose upon Thomas’s death … . U.S. Bank N.A. v Auteri, 2021 NY Slip Op 00588, Second Dept 2-3-21

 

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ALTHOUGH DEFENDANTS WERE NOT PROPERLY SERVED IN THIS FORECLOSURE ACTION AND THEIR MOTION TO VACATE THE JUDGMENT WAS GRANTED ON THAT GROUND, THE DEFENDANTS’ ATTORNEY’S “LIMITED APPEARANCE” AT A SETTLEMENT CONFERENCE PROVIDED THE COURT WITH JURISDICTION OVER THE MATTER; THE MOTION TO VACATE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Criteria for Motions to Dismiss Pursuant to CPLR 3211 Discussed in Detail
CORRESPONDENCE ESTABLISHED AN ENFORCEABLE SETTLEMENT AGREEMENT.
FATHER, WHO LIVES IN CALIFORNIA, SOUGHT MODIFICATION OF THE CALIFORNIA CUSTODY ORDER; MOTHER, WHO LIVES IN NEW YORK, SOUGHT MODIFICATION OF THE CALIFORNIA ORDER IN NEW YORK; FAMILY COURT CORRECTLY COMMUNICATED WITH THE CALIFORNIA COURT BUT DID NOT ALLOW THE PARTIES TO PRESENT FACTS AND LEGAL ARGUMENTS BEFORE DISMISSING THE NEW YORK PETITION; FAMILY COURT REVERSED (SECOND DEPT).
ABSENT SUBSTANTIAL PREJUDICE OR OTHER IMPROPER RESULTS, A MOTION FOR LEAVE TO DISCONTINUE THE ACTION WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT).
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PORTIONS OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED AS UNTIMELY; THE PORTION OF THE UNTIMELY MOTION WHICH HAD BEEN TIMELY RAISED BY ANOTHER DEFENDANT WAS PROPERLY CONSIDERED; THE LABOR LAW 241(6) CAUSE OF ACTION PROPERLY RELIED ON INDUSTRIAL CODE PROVISIONS REQUIRING THAT ELECTRICAL POWER BE SHUT DOWN TO PROTECT ELECTRICAL WORKERS (SECOND DEPT).

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