Jpmorgan Chase Bank, Nat'l Ass'n v. Milgrim

169 A.D.3d 1020

95 N.Y.S.3d 240

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent,

v.Eric P. MILGRIM, Public Administrator, as Temporary Administrator of the Estate of Leonel Escobar, etc., et al., Defendants;

Joel S. Charleston, as Administrator of the Estate of Leonel Escobar, Nonparty-Appellant.

2016–09878

2016–09879

Index No. 5656/13

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

Argued—June 7, 2018

February 27, 2019

Joel S. Charleston, as administrator of the estate of Leonel Escobar, North Woodmere, NY, nonparty-appellant pro se.

McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y. (Matthew S. Blum of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, nonparty Joel S. Charleston, as administrator of the estate of Leonel Escobar, appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered December 10, 2015, and (2) an order of the same court entered December 14, 2015. The order entered December 10, 2015, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Eric P. Milgrim, public administrator, as temporary administrator of the estate of Leonel Escobar, and for an order of reference. The order entered December 14, 2015, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Eric P. Milgrim, public administrator, as temporary administrator of the estate of Leonel Escobar, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff. By decision and order on motion dated October 17, 2016, this Court granted the motion of nonparty Joel S. Charleston, as administrator of the estate of Leonel Escobar, to stay all proceedings in this action pending hearing and determination of the appeals.

ORDERED that the order entered December 10, 2015, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Eric P. Milgrim, public administrator, as temporary administrator of the estate of Leonel Escobar, and for an order of reference are denied, and so much of the order entered December 14, 2015, as granted those branches of the plaintiff's motion and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further,

ORDERED that the appeal from the order entered December 14, 2015, is dismissed as academic in light of our determination on the appeal from the order entered December 10, 2015; and it is further, ORDERED that one bill of costs is awarded to nonparty Joel S. Charleston, as administrator of the estate of Leonel Escobar.

The plaintiff commenced this mortgage foreclosure action by summons and verified complaint dated April 15, 2013, alleging, inter alia, that Leonel Escobar, the homeowner and mortgagor who executed the subject note and mortgage in 2006, failed to make a mortgage payment due September 1, 2009, and that neither that payment, nor any payment due thereafter, was ever made. It is undisputed that Escobar died in September 2009. The plaintiff named as a defendant Eric P. Milgrim, public administrator, as temporary administrator of Escobar's estate (hereinafter the temporary administrator).

In July 2015, the plaintiff moved, inter alia, for leave to enter a default judgment against the nonanswering defendants, including the temporary administrator, and for an order of reference. In September 2015, nonparty Joel S. Charleston, as administrator of Escobar's estate (hereinafter the estate), submitted papers in opposition to the plaintiff's motion. Charleston stated in his affirmation in opposition that, on September 7, 2010, almost three years before the plaintiff commenced this action, he had been appointed administrator of the estate, and the letters of administration issued to the temporary administrator had been revoked. In his affirmation, Charleston asked the Supreme Court to deny the plaintiff's motion, inter alia, for leave to enter a default judgment against the estate, and to dismiss the complaint insofar as asserted against the estate for lack of personal jurisdiction, on the ground that the estate had never been served with the summons and complaint. The court issued an order granting the plaintiff's motion, and a subsequent order, inter alia, appointing a referee to compute the amount due to the plaintiff. Charleston, as administrator of the estate, appeals from both orders.

"On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant's default" (...