Dime Savings Bank of New York FSB v. Luna

In an action to foreclose a mortgage, the defendant Nathen Goldstein, Inc., appeals from an order of the Supreme Court, Kings County (Bárbaro, J.), dated March 15, 2002, which, inter alia, granted the motion of the nonparty respondent, Public Administrator of Kings County, as Administrator of the Estate of Silvia Luna, to vacate a judgment of foreclosure and sale, entered upon a default in answering, and to void the referee’s deed to the subject property. Ordered that the order is affirmed, with costs. “[A] plaintiff is unable to commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate” (Laurenti v Teatom, 210 AD2d 300, 301 [1994]; see 100 W. 72nd St. Assoc. v Murphy, 144 Misc 2d 1036, 1040 [1989]; Stephens v Victory Mem. Hosp., 142 Misc 2d 61, 65-66 [1988]; 21A Carmody-Wait 2d, NY Prac § 129:24, at 276; 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 210.04). Here, it is undisputed that no personal representative had been appointed for the decedent’s estate at the time that the plaintiff attempted to commence this action to foreclose on the mortgage on the decedent’s property. The appellant’s remaining contentions are without merit. Smith, J.P., Goldstein, Townes and Mastro, JJ., concur.