Real Estate Mtge. Network, Inc. v. Perez

Real Estate Mtge. Network, Inc. v Perez 2026 NY Slip Op 05562 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Real Estate Mortgage Network, Inc., respondent, v Brenda Perez, et al., defendants; Alexander Martinez, nonparty-appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2023-10271, 2024-02016, (Index No. 25426/11) Betsy Barros, J.P. Lara J. Genovesi Helen Voutsinas Carl J. Landicino, JJ. Jeffrey Herzberg, P.C., Hauppauge, NY, for nonparty-appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Ruth O'Connor of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, nonparty Alexander Martinez appeals from (1) an order of the Supreme Court, Suffolk County (C. Stephen Hackeling, J.), dated October 2, 2023, and (2) an order of the same court (Robert F. Quinlan, J.) dated January 16, 2024. The order dated October 2, 2023, insofar as appealed from, denied that branch of the motion of nonparty Alexander Martinez which was to vacate an amended order and judgment of foreclosure and sale of the same court (John H. Rouse, J.) dated April 25, 2022. The order dated January 16, 2024, insofar as appealed from, granted that branch of the plaintiff's motion which was to extend the time to conduct a foreclosure sale. ORDERED that the order dated October 2, 2023, is reversed insofar as appealed from, on the law, and that branch of the motion of nonparty Alexander Martinez which was to vacate the amended order and judgment of foreclosure and sale is granted; and it is further, ORDERED that the order dated January 16, 2024, is reversed insofar as appealed from, on the law, and that branch of the plaintiff's motion which was to extend the time to conduct the foreclosure sale is denied; and it is further; ORDERED that one bill of costs is awarded to nonparty Alexander Martinez. In 2011, the plaintiff commenced this action against, among others, Richard Martinez (hereinafter the decedent) and Brenda Perez to foreclose a mortgage. The decedent, pro se, served his answer in 2013. In or about November 2014, the plaintiff moved, among other things, for summary judgment on the complaint and for an order of reference, which motion the Supreme Court treated as unopposed on the basis that the decedent's alleged responsive documents were not properly filed with the court. In an order dated May 11, 2017, the court granted the plaintiff's motion. A judgment of foreclosure and sale was entered on November 29, 2017, directing that a foreclosure sale take place within 90 days of the entry of the judgment of foreclosure and sale. It is undisputed that the [*2]foreclosure sale did not take place by that deadline. On November 3, 2020, the decedent died. On or about February 7, 2022, the plaintiff moved, inter alia, for an extension of time to conduct the foreclosure sale and to discontinue the action insofar as asserted against the decedent. Perez opposed the motion, contending, in relevant part, that the decedent's death stayed the action until a representative was appointed. In an amended order and judgment of foreclosure and sale dated April 25, 2022, the Supreme Court, among other things, granted those branches of the plaintiff's motion. In an order dated September 27, 2022, the court, inter alia, denied that branch of the motion of the "surviving family members of Richard Martinez" which was to vacate the amended order and judgment of foreclosure and sale. On May 26, 2023, Alexander Martinez was appointed the personal administrator of the decedent's estate (hereinafter the administrator). Thereafter, the administrator moved, among other things, to vacate the amended order and judgment of foreclosure and sale. The administrator contended, inter alia, that the action was stayed upon the decedent's death. Evidence was also submitted that on November 25, 2019, Perez executed a deed transferring her share of ownership in the property to the decedent. The plaintiff opposed the motion. By order dated October 2, 2023, the Supreme Court, among other things, denied that branch of the administrator's motion. In December 2023, the plaintiff moved, inter alia, for another extension of the time to conduct the foreclosure sale. The administrator opposed the motion. By order dated January 16, 2024, the Supreme Court, among other things, granted that branch of the plaintiff's motion. The administrator appeals from the orders dated October 2, 2023, and January 16, 2024. "Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent" (Nationstar Mtge., LLC v Azcona, 186 AD3d 614, 615 [internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v Smith, 191 AD3d 950, 951). "Any determination rendered without such a substitution is ordinarily deemed a nullity" (Nationstar Mtge., LLC v Persaud, 231 AD3d 842, 844 [alteration and internal quotation marks omitted]). However, "if a party's death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution" (Nationstar Mtge., LLC v Azcona, 186 AD3d at 615-616; see U.S. Bank Natl. Assn. v Esses, 132 AD3d 847, 847-848). "A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action" (Signature Bank v Epstein, 95 AD3d 1199, 1200 [internal quotation marks omitted]). However, "[a] judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until the sale is actually conducted" (Nationstar Mtge., LLC v Persaud, 231 AD3d at 845 [internal quotation marks omitted]; see Ray v JP Morgan Chase Bank, N.A., 145 AD3d 812, 813). Here, the decedent answered the complaint and was entitled to service of all papers in the action, including any motions to extend the time in which to conduct the foreclosure sale and any notice of sale (see CPLR 2103; Nationstar Mtge., LLC v Persaud, 231 AD3d at 844; 38-12 Astoria Blvd., LLC v Ramos, 203 AD3d 790, 791; Ray v JP Morgan Chase Bank, N.A., 145 AD3d at 813). Under these circumstances, contrary to the plaintiff's contention, the decedent's death did affect the merits of this action and triggered a stay of all proceedings in the action pending substitution of a legal representative (see Nationstar Mtge., LLC v Persaud, 231 AD3d at 844; CitiMortgage, Inc. v Clement, 209 AD3d 971, 972; Deutsche Bank Natl. Trust Co. v Smith, 191 AD3d at 951). Any determinations made by the Supreme Court after the decedent's death were a nullity, including the amended order and judgment of foreclosure and sale and the orders appealed from (see Nationstar Mtge., LLC v Persaud, 231 AD3d at 845; see Deutsche Bank Natl. Trust Co. v Smith, 191 AD3d at 951; Ray v JP Morgan Chase Bank, N.A., 145 AD3d at 813). In light of the foregoing, we need not consider the administrator's remaining contentions. BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court