Argued-March 12, 2018
Solomon & Siris, P.C., Garden City, NY (Bill Tsevis of
counsel), for appellant.
Stewart Law Firm, PLLC, Rosedale, NY (Nadira S. Stewart of
counsel), for respondent.
E. CHAMBERS, J.P. SHERI S. ROMAN BETSY BARROS LINDA
DECISION & ORDER
action, inter alia, to rescind deeds, the defendant Randy
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.
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.
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 defendant Calvary Healing
Deliverance and Evangelistic Miracle Temple, Inc.
(hereinafter Calvary), was a forgery. Subsequently, the
property was conveyed from Calvary to the defendant Fortunate
Enterprises, Inc. (hereinafter Fortunate), and thereafter, by
deed dated October 10, 2006, the property was conveyed from
Fortunate to the defendant Randy Page.
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.
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)" (NYCTL2004-A Trust v
Archer, 131 A.D.3d 1213, 1214; see CPLR 1015,
1021; Vicari v Kleinwaks, 157 A.D.3d 975, 976).
"CPLR 1021 provides an exception to the principle that
the Supreme Court is divested of jurisdiction to act during
an automatic stay" (Rumola v Maimonides Med.
Ctr., 37 A.D.3d 696, 697; see Washington v Min Chung
Hwan, 20 A.D.3d 303, 305; Hyman v Booth Mem.
Hosp., 306 A.D.2d 438, 438; Gonzalez v Ford Motor
Co., 295 A.D.2d 474, 475), a motion to dismiss pursuant
to CPLR 1021 requires that notice be provided to persons
interested in the decedent's estate (see Barnabas v
Boodoo, 134 A.D.3d 970, 971-972; Rumola v
Maimonidies Med. Ctr., 37 A.D.3d at 698; Gonzalez v
Ford Motor Co., 295 A.D.2d at 475).
Page not only failed to provide notice of the cross motion to
dismiss the action to persons interested in the
decedents' estates, he also failed to offer evidence of
any reasonable efforts to attempt to provide such notice. We
agree with the Supreme Court's determination to deny
Page's cross motion to dismiss the action, with leave to
renew. However, pursuant to CPLR 1021, service should be made