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THE ESTATE WAS A NECESSARY PARTY IN THE FORECLOSURE ACTION; THE COURT SHOULD DETERMINE WHETHER THE NECESSARY PARTY CAN BE SUMMONED AND, IF NOT, WHETHER THE ACTION CAN CONTINUE IN THE PARTY’S ABSENCE; THE FACT THAT THE STATUTE OF LIMITATIONS HAS RUN DOES NOT PRECLUDE SUMMONING THE NECESSARY PARTY (SECOND DEPT).

The Second Department, modifying Supreme Court, explained the proper procedure where it is alleged the complaint should be dismissed for failure to include a necessary party, here the failure to include an estate in a foreclosure action. First the court should determine whether the party can be summoned, noting that the expiration of the statute of limitations is does not bar summoning the party. Second, if the party cannot be summoned the court should determine whether the action can continue in the party’s absence:

“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 courtesy, 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'” … . “Particularly where, as here, the plaintiff seeks a deficiency judgment, and alleges a default in payment subsequent to the death of the deceased mortgagor, the estate of the mortgagor is a necessary party to the foreclosure action” … .

When a necessary party has not been made a party and is “subject to the jurisdiction” of the court, the proper remedy is not dismissal of the complaint, but rather for the court to order that the necessary party be summoned (see CPLR 1001[b] …). Contrary to the intervenors’ contention, the Supreme Court’s ability to direct joinder of a representative of [the] estate at this juncture is not affected by the purported running of the statute of limitations, because the expiration of a statute of limitations is not a jurisdictional defect … .  … [W]hen jurisdiction over an absent necessary party “can be obtained only by [that party’s] consent or appearance, the court, when justice requires, may allow the action to proceed without [that party],” upon consideration of various enumerated factors (CPLR 1001[b] …). U.S. Bank Trust N.A. v Germoso, 2023 NY Slip Op 02704, Second Dept 5-17-23

Practice Point: Here an estate was a necessary party in the foreclosure action. The proper procedure is for the court to determine if the party can be summoned, and, if not, whether the action can continue in the party’s absence. The fact that the statute of limitations had run did not preclude summoning the estate.

 

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