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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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