Countrywide Home Loans, Inc. v. Keys

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 15, 2004, which denied defendants-appellants’ motion to vacate the judgment of foreclosure and sale covering premises known as 4164 Wickham Avenue, Bronx, New York, unanimously affirmed, without costs. Appellant Debrah Keys in her individual and representative capacities seeks to vacate the subject judgment of foreclosure, contending that plaintiff’s predecessor, the mortgagee, never properly served her in her capacity as a distributee of the mortgagor’s estate and never obtained jurisdiction over the estate, which, she urges, was a necessary party to the foreclosure action. These very issues were, however, previously raised by appellant and decided against her in an order from which she took no timely appeal. We would note, in any case, that joinder of the mortgagor’s estate was unnecessary. The action sought no deficiency judgment as against the estate; it was one simply to foreclose subordinate interests in the affected property and as such was governed by RPAPL 1311 (1), which does not require an estate’s joinder (see Winter v Kram, 3 AD2d 175, 177 [1957]). Concur—Tom, J.P., Friedman, Nardelli, Williams and Sweeny, JJ.