By notice of motion filed on May 17, 2013, under motion sequence number one, plaintiff HSBC BANK USA, N.A., as Trustee for the Registered Holders of Ace Securities Corp. Home Equity Loan Trust, SERIES 2004-in1, Asset Backed Pass-through Certificates (hereinafter HSBC), has moved for an order (1) appointing a referee to compute the amounts due; (2) amending the caption by striking "John Doe #2" through "John Doe #12", and (3) striking Claudette Brunson from the caption and replacing her name with Ashanti Douglas and Tanya Douglas, Individually and as Co-Administrator of the Estate of Claudette Brunson.

The motion is unopposed.

BACKGROUND

On August 19, 2011, HSBC commenced the action to foreclose on a mortgage against a piece of real property located at Block 8545, Lot 56, commonly known as 2036 East 54th Street, [*2]Brooklyn, New York 11234 (the subject property) by filing a summons, complaint and notice of pendency with the Kings County Clerk's office. No defendant has joined issue.

HSBC's complaint and annexed motion papers allege that defendant Claudette Brunson (hereinafter Brunson), encumbered the subject property with two mortgages. On April 11, 1997, Brunson and an individual non-party executed the first mortgage in the amount of $222,700.00 in favor of Wall Street Mortgage Bankers, LTD doing business as Power Express. On March 25, 2003, Brunson executed the second mortgage in favor of Indymac Bank F.S.B. in the amount of $25,656.96. On March 25, 2003, Brunson combined both mortgages by entering into a Consolidated, Extension and Modification Agreement. HSBC contends that Brunson defaulted on the payment of the consolidated mortgages by not making payments from March 1, 2010 to date. On July 27, 2011, the mortgages were assigned to HSBC by affidavit of lost assignment.

MOTION PAPERS

The motion papers consist of a notice of motion, several affirmations from HSBC's counsel, an affidavit from an employee of Ocwen Loan Servicing, Inc, the company that services plaintiff's mortgages; an affirmation pursuant to RPAPL 1304, a proposed order of reference, an affidavit of service by mail, an affirmation pursuant to administrative order 431/2011, and twelve annexed exhibits labeled A through L. Exhibit A is a copy of summons and complaint and notice of pendency. Exhibit B is a copy of the consolidation, extension, and modification agreement combining defendant's mortgages. Exhibit C contains copies of the notes and both mortgages given by Brunson securing the notes. Exhibit D is a copy of the assignments of the first mortgage. Exhibit E is a copy of the affidavit of lost assignment transferring the consolidated mortgage to HSBC. Exhibit F is a copy of the deed to the subject property. Exhibit G contains a copy of Brunson's death certificate and a Decree of Administration appointing Ashanti Douglas and Tanya Douglas as the administrators of Claudette Brunson's estate. Exhibit H contains copies of affidavits of service. Exhibit I is a copy of the affidavit of service of the application for an order of reference. Exhibit J is a copy of the affidavit of mailing of the summons. Exhibit K contains copies of two letters purportedly sent to defendant Brunson. The first is dated September 15, 2009 and the second is dated July 2, 2009. Exhibit L is a copy of an affirmation of HSBC's counsel pursuant to administrative order 431/2011.

LAW AND APPLICATION

HSBC seeks, among other things, an order appointing a referee to compute the amount that it is due on the consolidated notes based on Brunson's default in making payments. HSBC also seeks to amend the caption and to strike Brunson and replace her name with her co-administrators. Although HSBC did not state the procedural vehicle for this branch of the relief it seeks, it is apparent that the motion is pursuant to CPLR 1015(a) and 1021.

"It is well settled that the death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a) . . . , and any order rendered after the death of a party and before the substitution of a legal representative is void" (see Matter of Sills v Fleet Natl. Bank, 81 AD3d 1422, 1423 [4th Dept 2011] citing Griffin v Manning, 36 AD3d 530, 532 [1st Dept 2007]). Only "under special circumstances,' such as where there has been active participation in the litigation by the personal representative who would have been substituted for decedent" is the rule waived (id.). It is also well established that the dead cannot be sued (Marte v Graber, 58 AD3d 1 [1st Dept 2008]). [*3]

The substitution provisions of CPLR 1015(a) and 1021 presuppose that an action was commenced against a living person — someone who has the legal capacity to be "a party" — and the action was pending at the time such party died. In Marte v Graver, the putative defendant was already dead at the time the summons and complaint were filed, rendering the action a nullity from the outset as to that defendant (58 AD3d 1 [1st Dept 2008]). Since the decedent was never a party to the action, the substitution provisions of CPLR 1015 and 1021 were unavailable to correct the defect, and dismissal was required (see Rivera v Bruchim, 100 AD3d 700 [2nd Dept 2013]). A "personal representative should have been named as the defendant at the outset" (Vincent C. Alexander Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, CPLR C1015:3. Substitution Upon Death of a Party).

In the instant matter, HSBC filed the summons and complaint on August 19, 2011. HSBC candidly admits, and buttressed by a death certificate annexed as exhibit G that defendant Brunson died on October 26, 2008, over two years prior to the date the action was commenced. The motion ultimately seeks, among other things, an order pursuant to CPLR 1015 and 1021 amending the caption to strike Claudette Brunson and replace the decedent with Ashanti Douglas and Tanya Douglas, the co-administrators of her estate. However, since Brunson died prior to the commencement of this action, this matter was a nullity from the onset and, thus, cannot be remedied.

For the foregoing reasons, the complaint as against defendant Claudette Brunson is a nullity that cannot be cured. The court has no jurisdiction to entertain the motion (Rivera v Bruchim, 100 AD3d 700 [2nd Dept 2013]). Therefore, plaintiff's requests are denied and the complaint as against defendant Claudette Brunson is dismissed.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.

Enter Forthwith:________

J.S.C.