

NYCTL 2004-A Trust v Archer (2015 NY Slip Op 07013)





NYCTL 2004-A Trust v Archer


2015 NY Slip Op 07013


Decided on September 30, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 30, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
BETSY BARROS, JJ.


2013-07410
 (Index No. 15405/05)

[*1]NYCTL 2004-A Trust, et al., plaintiffs, 
vMillicent Archer, etc., et al., defendants; Randolph Scott, nonparty-appellant; Nowell Brathwaite, nonparty- respondent.


Mordente Law Firm, LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel), for nonparty-appellant.

DECISION & ORDER
In an action to foreclose a tax lien, Randolph Scott appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated March 18, 2011, which granted the motion of Nowell Brathwaite to disaffirm the report of a referee dated June 1, 2007, recommending that the surplus proceeds from the sale of the subject property be distributed to him, denied his cross motion to confirm the referee's report, and, sua sponte, transferred the matter to the Surrogate's Court, Kings County.
ORDERED that the appeal is dismissed, without costs or disbursements, and the order is vacated.
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 legal representative for the decedent pursuant to CPLR 1015(a) (see CPLR 1015, 1021; JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713, 714; Neuman v Neumann, 85 AD3d 1138, 1139; Stancu v Cheon Hyang Oh, 74 AD3d 1322, 1322-1323; Reed v Grossi, 59 AD3d 509, 511; Abley Props., Inc. v Reid, 52 AD3d 442, 443; Rumola v Maimonides Med. Ctr., 37 AD3d 696, 696-697). "[A]ny determination rendered without such a substitution will generally be deemed a nullity" (Singer v Riskin, 32 AD3d 839; 840; see JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d at 714; Stancu v Cheon Hyang Oh, 74 AD3d at 1322-1323). Here, the record indicates that the defendant Millicent Archer died before the order appealed from was issued, and that, although the appellant was appointed as administrator of her estate, he was never substituted for her as a defendant in this action, as required by CPLR 1015. Since a proper substitution had not been made, the Supreme Court was without jurisdiction to consider the merits of either the motion of Archer's stepson, Nowell Brathwaite, to disaffirm the report of a referee dated June 1, 2007, or the appellant's cross motion to confirm the referee's report (see Abley Props., Inc. v Reid, 52 AD3d at 443). Accordingly, the order appealed from is a nullity and must be vacated, and this Court has no jurisdiction to entertain the appeal (see JP Morgan Chase Bank, N.A. v Rosemberg, 90 AD3d at 714; Klaus v Schepps, 15 AD3d 626, 626; Bossert v Ford Motor Co., 140 AD2d 480, 480-481).
BALKIN, J.P., ROMAN, MALTESE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


