BACKGROUND

On January 8, 2010, Chase commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office. No one has appeared or submitted opposition to the motion.

Chase alleges that on June 9, 1994, Winifred A. Charles (hereinafter Charles) executed and delivered a mortgage (hereinafter the subject mortgage) to Fleet Real Estate Funding Corp. (hereinafter Fleet) on certain real property known as 733 MacDonough Street, Brooklyn, New York, Block 1498, Lot 1040 (hereinafter the subject property) to secure a note in the amount of $47,900.00 in favor of Fleet (hereinafter the note).

Fleet assigned the mortgage and note to Chase by an assignment dated December 24, 2009. Chase has alleged that Charles failed to make payments when due and defaulted on the subject note and that Chase accelerated the note and commenced the instant action based on the default. Chase also alleges that no defendant has answered the complaint.

In support of the motion, Chase has submitted an attorney's affirmation. The affirmation states in paragraph ten that "subsequent to the commencement of the action herein, plaintiff ascertained that defendant Winifired A. Charles a/ka/ Winnifred A. Charles is deceased." The moving papers, however, do not contain a death certificate and there is nothing therein indicating the date of Charles' 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 (see 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 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).

If Charles died after the commencement of the action, then pursuant to CPLR 1015 the action must be stayed. Several procedural consequences flow from the rule that the court's jurisdiction is divested, at least temporarily, by a party's death (Practice Commentaries by Vincent C. Alexander, Book 7B C1015:3). All proceedings in the action are automatically stayed by the death (Gonzalez v Ford Motor Co., 295 AD2d 474 [2nd Dept 2002]). Also, as a general rule, any orders of the court that are made between the date of death and the substitution are null and void (Griffin v Manning, supra; Singer v Riskin, 32 AD3d 839 [2nd Dept 2006]; Schraven v Town of Tonawanda, 238 AD2d 952 [4th Dept 1997]).

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 Charles. Until the fact and the date of death of Charles is established, Chase's motion for an order striking Charles' name from the caption must be denied without prejudice. For the foregoing reasons, the fact and the date of Charles' death directly effects the procedures available to Chase and the manner that it must proceed to obtain the relief its seeks (see JP Morgan Chase Bank, N.A. v Hyman, 46 Misc 3d 1203(A) [Sup Ct. Kings County 2014]).

In the event that Charles seeks the same relief it must annex the death certificate of Charles and a copy of the instant decision and order to the motion papers.

Accordingly, that portion of Chase's motion seeking the appointment of a referee to compute is denied.

That portion of the Chase's motion seeking to amend the caption is denied.

That portion of the Chase's motion seeking the default against the defendants is denied.

The foregoing constitutes the decision and order of the court.

J.S.C.