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THE ESTATE OF A JOINT TENANT WAS NOT A NECESSARY PARTY IN THE FORECLOSURE ACTION BECAUSE THE INTEREST IN THE PROPERTY PASSED UPON DEATH, THE ESTATE’S MOTION TO INTERVENE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the estate’s motion to intervene in a foreclosure proceeding was properly denied. When Sydney Burt, a joint tenant with right of survivorship, died, his interest in the property subject to the foreclosure action passed to the joint tenant, Karyn Berkley, and not to Sydney’s estate. Therefore the estate did not have the right to intervene in the foreclosure:

… [T]he issue of whether the proposed intervenor was a necessary party in the action was determined on the merits by the Supreme Court in its order … , wherein it denied the defendant’s motion, inter alia, to dismiss the complaint for failure to join the proposed intervenor. Thus, the parties had a full and fair opportunity to litigate the issue of whether the proposed intervenor was a necessary party. … [W]e agree with the Supreme Court’s determination to deny intervention. New York defines a joint tenancy as “an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and creating in each joint tenant a right of survivorship” … . “The right of survivorship has been defined as a right of automatic inheritance’ where, upon the death of one joint tenant, the property does not pass through the rules of intestate succession, but is automatically inherited by the remaining tenant” … . Therefore, when one joint tenant dies, the other joint tenants automatically inherit the property. This is in marked contrast to tenancies in common which allow a decedent’s share of property to pass under the rules of inheritance … . Thus, here, upon the Sydney Burt’s death, his interest in the property did not pass to his estate, the proposed intervenor; rather, it automatically passed to the remaining joint tenants, the defendant and Berkley. Therefore, the proposed intervenor was not a necessary party and did not have the right to intervene in the foreclosure action. PHH Mtge. Corp. v Burt, 2019 NY Slip Op 07802, Second Dept 10-30-19

 

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