On February 26, 2010, Chase commenced the instant residential mortgage foreclosure action by filing a summons, complaint and notice of pendency with the Kings County Clerk's office.

The complaint alleges in pertinent part, that on August 10, 2007, defendant Mary Hyman (hereinafter "Hyman" or "the mortgagor") executed and delivered to Mortgage Electronic Registration Systems Inc. (hereinafter MERS) as nominee for Delta Funding Corporation (hereinafter DFC) a note in the amount of $468,750.00 (the subject note). On the same date, Hyman executed and delivered to MERS as nominee for Delta Funding Corporation a mortgage on certain real property known as 49 Albany Avenue, Brooklyn, New York, Block 1699, Lot 3 (hereinafter the subject property) to secure the subject note. The note was thereafter assigned to Chase. Chase alleges that Hyman failed to make monthly payments when due on June 1, 2009 and thereafter. Chase accelerated the note and commenced the instant action based on Hyman's default.

Chase seeks to amend the caption by striking the names of defendants Dick Moe and Ruby Poe. Through the affirmation of its counsel, Chase alleges that defendant Dick Moe and Ruby Poe were not served with the summons and complaint and that neither one is a necessary party in the action. "In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" (Wells Fargo Bank, N.A. v Chaplin, 107 AD3d 881, 883 [2nd Dept 2013]). There is no opposition to the application and the court sees no prejudice to any party by granting the request. Accordingly, Chase's motion for an order, in effect pursuant to CPLR 3217 (b), to voluntarily discontinue this action as against Dick Moe and Ruby Poe and to amend the caption accordingly is granted.

The analysis is vastly different regarding the striking of Mary Hyman from the caption. Paragraph five of the affirmation of Chase's counsel, contains a list derived from the counsel's review of the annexed affidavits of service of the summons and complaint. The list contains the names and dates of service of the commencement papers on the defendants therein named. The first name on the list is Mary Hyman and along side her name is the word "deasead" [sic] and nothing more. The moving papers, however, do not contain a death certificate and there is nothing therein indicating the date of death.

"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]).

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 was filed, rendering the action a nullity [*2]from the outset as to that defendant (58 AD3d 1 [1st Dept 2008]). Without the death certificate and the date of death, the court cannot determine whether the decedent was ever a party to the action. If the death preceded commencement of the action, the substitution provisions of CPLR 1015 and 1021 do not apply (see Rivera v Bruchim, 100 AD3d 700 [2nd Dept 2013]). Instead 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).

CPLR 2214 (c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved. Contrary to this requirement, Chase did not annex a death certificate for Mary Hyman. Until the fact and the date of death of Mary Hyman is established, Chase's motion for an order striking her name from the caption must be denied without prejudice. For the foregoing reasons, the fact and the date of Mary Hyman's death directly effects the procedures available to Chase and the manner that it must proceed to obtain the relief its seeks.

RPAPL 1321 provides in pertinent part as follows:

If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.

When seeking an order of reference to determine the amount that is due on an encumbered property, or a judgment of foreclosure and sale, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01 [4] [k] [note: online edition]).

Chase's motion for an order appointing a referee pursuant to RPAPL 1321 and deeming all non-answering defendants in default requires, among other things, that it demonstrate entitlement to judgment as against all named defendants who remain parties in the action. Consequently, Chase must demonstrate entitlement to an order striking defendant Mary Hyman from the caption and dismissing her from the case. Since, it has failed to do so, it cannot show it entitlement to an order appointing a referee or to a default judgment as against Mary Hyman.

Furthermore, Chase has named defendant Bonita Suzanne Hyman as the administratrix of Mary Hyman in the caption. The motion papers, however, contains no evidence of Bonita Suzanne Hyman's status as the administratrix of Mary Hyman or of the date she allegedly attained that status. In order to demonstrate entitlement to judgment as against Bonita Suzanne Hyman, as the administratrix of Mary Hyman, proof of the date and the fact of the status must be demonstrated. By failing to do so, Chase has once again failed to submit a necessary document contrary to the requirments of CPLR 2214 (c). Consequently, Chase cannot show its entitlement [*3]to an order appointing a referee pursuant to RPAPL 1321 or to a default judgment pursuant to CPLR 3215 as against Bonita Suzanne Hyman.

In the interest of judicial economy, the court did not continue to review Chase's motion papers for problems after discovering the above mentioned issues. In the event that Chase seeks the same relief in a subsequent motion, it is directed to annex the instant decision and order with its motion papers. Chase is also directed to annex evidence establishing the fact and the date of Mary Hyman's death and the fact and the date of Bonita Suzanne Hyman's status as the administratrix of Mary Hyman.

That branch of Chase's motion which seeks an order appointing a referee to compute pursuant to RPAPL 1321 is denied without prejudice.

That branch of Chase's motion which seeks an order deeming all non-answering defendant's in default is denied without prejudice.

That branch of Chase's motion which seeks to amend the caption by striking defendants Dick Roe and Ruby Poe is granted.

That branch of Chase's motion which seeks to strike defendant Mary Hyman from the caption is denied without prejudice.

The foregoing constitutes the decision and order of the court.

J.S.C.