Feurtado ex rel. Feurtado v. Page

• Decision Date: 25 July 2018
• Docket Number: 2017–07040,Index No. 29108/06
• Citation: 163 A.D.3d 926,83 N.Y.S.3d 89
• Parties: Lance FEURTADO, ON BEHALF OF Anthony FEURTADO, respondent, v. Randy PAGE, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 926

83 N.Y.S.3d 89

Lance FEURTADO, ON BEHALF OF Anthony FEURTADO, respondent,

v.Randy PAGE, appellant, et al., defendants.

2017–07040

Index No. 29108/06

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 12, 2018

July 25, 2018

Solomon & Siris, P.C., Garden City, N.Y. (Bill Tsevis of counsel), for appellant.

Stewart Law Firm, PLLC, Rosedale, N.Y. (Nadira S. Stewart of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to rescind deeds, the defendantRandy Page appeals from an order of the Supreme Court, Queens County(Janice A. Taylor, J.), entered April 5, 2017.The order, insofar as appealed from, denied that defendant's cross motion pursuant to CPLR 1021 to dismiss the action, with leave to renew upon service upon the executors or administrators of the estates of Elouise B. Goodwin, deceased, Rose Lee Williams, deceased, and Lanie Goldberg, deceased, if any have been appointed, the Queens County Public Administrator, and the Queens County Surrogate.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting leave to renew the cross motion upon service upon the executors or administrators of the estates of Elouise B. Goodwin, deceased, Rose Lee Williams, deceased, and Lanie Goldberg, deceased, if any have been appointed, the Queens County Public Administrator, and the Queens County Surrogate, and substituting therefor a provision directing that leave to renew be granted upon service upon persons interested in the estates of Elouise B. Goodwin, deceased, Rose Lee Williams, deceased, and Lanie Goldberg, deceased; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

On December 28, 2006, the plaintiff commenced this action on behalf of his brother, Anthony Feurtado, inter alia, to rescind certain deeds in order to recover ownership of real property located in Jamaica, Queens.The complaint alleged that a deed dated December 31, 1996, conveying the property from Anthony Feurtado to the defendantCalvary Healing Deliverance and Evangelistic Miracle Temple, Inc.(hereinafter Calvary), was a forgery.Subsequently, the property was conveyed from Calvary to the defendantFortunate Enterprises, Inc.(hereinafter Fortunate), and thereafter, by deed dated October 10, 2006, the property was conveyed from Fortunate to the defendantRandy Page.

In 2007, the plaintiff's counsel received notice that three of the defendants, Rose Lee Williams, Lanie Goldberg, and Elouise Goodwin(hereinafter collectively the decedents), died during the pendency of the action.In September 2016, the Supreme Court, in effect, removed the action from the active calendar.The plaintiff moved, inter alia, to restore the action to the calendar, and Page cross-moved pursuant to CPLR 1021 to dismiss the action based upon the plaintiff's failure to make a timely substitution of the proper parties in the place of the decedents.The court, among other things, denied Page's cross motion with leave to renew.Page appeals, and we modify.

"Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent pursuant to CPLR 1015(a)"( NYCTL 2004–A Trust v. Archer , 131 A.D.3d 1213, 1214, 16 N.Y.S.3d 777;seeCPLR 1015, 1021;Vicari v. Kleinwaks , 157 A.D.3d 975, 976, 70 N.Y.S.3d 532 ).

Alth...