Toiny LLC v. Gill

TOINY LLC, Plaintiff, v. CAROL GILL, et aLt Defendants.

No. 18-CV-40 (NGG) (VMS)

United States District Court, E.D. New York

September 8, 2022

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.

Pending before the court is Plaintiffs unopposed motion for summary judgment. (Mot. for Summ. J. (Dkt. 56).) Plaintiffs seek judicial foreclosure of a property located at 585 Lexington Avenue, Brooklyn, New York 11221. (See Am. Compl. (Dkt. 7) «[ 1.) This motion was referred to Magistrate Judge Vera M. Scanlon for a report and recommendation ("R&R"). (See May 25, 2022 Order Referring Mot.) Magistrate Judge Scanlon issued the annexed R&R on August 16, 2022, recommending that the court deny Plaintiffs motion without prejudice and grant leave to file and serve an amended complaint naming the necessary defendants. (See R&R (Dkt. 83) at 8.)

No party has objected to Magistrate Judge Scanlon's R&R and the time to do so has now passed. See Fed. R Civ. P. 72(b)(2). Therefore, the court reviews the R&R for clear error. See Rubinstein &Assocs., PLLCv. Entrepreneur Media, Inc., 554 F.Supp.3d 506, 510 (E.D.N.Y. 2021). Having found none, the court ADOPTS the R&R in full and, for the reasons stated in the R&R, Plaintiffs motion for summary judgment is DENIED without prejudice. Plaintiff is granted leave to file and serve an amended complaint within forty-five days of this order.

A copy of this order is being filed on ECF. The court directs the Clerk of Court to mail it by regular mail with proof of mailing to Defendants Carol Gill, 19 Woodruff Ave, Apt A3, Brooklyn, NY 11226; Jared Clement, 828 E. 48th St, Basement Apt, Brooklyn, NY 11203; Jewel Clement, 822 Summit Lake Drive, West Palm Beach, FL 33406; and Nekisha Clement, 650 Ocean Avenue, Apt 610, Brooklyn, NY 11226.

SO ORDERED.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

TOINY LLC, Plaintiff, -against-

CAROL GILL, as heir and distributee of the Estate of Eugene Clement also known as Eugene Robert Clement, JARED CLEMENT, as heir and distributee of the Estate of Eugene Clement also known as Eugene Robert Clement, NEKISHA CLEMENT, as heir and distributee of the Estate of Eugene Clement also known as Eugene Robert Clement, JEWEL CLEMENT, as heir and distributee of the Estate of Eugene Clement also known as Eugene Robert Clement, CRIMINAL COURT OF THE CITY OF NEW YORK, SUPREME COURT OF THE CITY OF NEW YORK, COUNTY OF KINGS, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD NEW YORK CITY TRANSIT ADJUDICATION BUREAU, 585 LEX CORP., FANTASIA HUNT and PUBLIC ADMINISTRATOR OF KINGS COUNTY, Defendants.

No. 18 Civ. 40 (NGG) (VMS)

REPORT AND RECOMMENDATION

VERAM. SCANLON UNITED STATES MAGISTRATE JUDGE

Plaintiff Toiny LLC ("Plaintiff) brings this action against Defendants Carol Gill, Jared Clement, Nekisha Clement and Jewel Clement, as heirs and distributees of the Estate of Eugene Clement, as well as against the Criminal Court of the City of New York, Supreme Court of the City of New York County of Kings, New York City Environmental Control Board, New York City Transit Adjudication Bureau, 585 Lex Corp., Fantasia Hunt and the Public Administrator of Kings County (collectively, "Defendants"), pursuant to New York Real Property Actions & Proceedings Law ("RPAPL") § 1301 et sefl., to, inter alia, foreclose a mortgage encumbering property located at 585 Lexington Avenue, Brooklyn, New York 11221 (the "Property"). See generally Amended Complaint ("Am. Compl"), ECF No. 7. Presently before the Court is Plaintiffs unopposed motion for summary judgment.^[1] ECFNos. 56-59. For the following reasons, this Court respectfully recommends that Plaintiffs motion for summary judgment be denied.

I. BACKGROUND

a. Procedural History

On January 3, 2018, Plaintiff commenced this action against those individuals and entities that may have an interest in Mr. Clement's estate, including heirs and distributees. See ECF No. 1. On the same date, Plaintiffs Counsel filed a Certificate of Merit pursuant to CPLR 3012-b. ECF No. 2. Plaintiff attached a copy of the Note and Mortgage to the Complaint. ECF Nos. 1-2, 1-3. Plaintiff filed an Amended Complaint on February 28, 2018. See Am. Compl. . When all Defendants failed to answer or otherwise respond to the Amended Complaint, Plaintiff sought and received certificates of default for all Defendants. See ECF Nos. 23-24, 26-27. Plaintiff then filed a motion for default judgment of foreclosure and sale of the Property against all Defendants. See ECF Nos. 28-30. Subsequent to the motion's filing, Defendants Carol Gill and Jared Clement appeared before the Court, and attorney Michael Andrew Lehrman entered an appearance for Ms. Gill. See ECF Nos. 33-34. Given the two Defendants' participation in this case, and Ms. Gill's and Mr. Jared Clement's representations that they had never received a copy of the Summons and Amended Complaint, the undersigned vacated the certificates of default against Ms. Gill and Mr. Jared Clement, and recommended that the non-appearing Defendants' certificates of default be vacated and that Plaintiffs motion for default judgment be denied as premature. See ECF No. 37. The District Court adopted the undersigned's recommendation. See ECF No. 39.

Ms. Gill and Mr. Lehrman then participated in this litigation, to a certain point. Ms. Gill filed an answer to the Amended Complaint, see ECF No. 42, and appeared via her attorney at Court conferences related to a potential mediation and discovery. See ECF Nos. 44-45. Ms. Gill raised as an affirmative defense that Plaintiff named the Public Administrator of Kings County, so as to obtain jurisdiction over Mr. Clement's estate, but the Public Administrator of Kings County only held Limited Letters of Administration for the sole purpose of defending Mr. Clement's estate in an unrelated Kings County Supreme Court action. See ECF No. 42 % 21. As such, Ms. Gill's affirmative defense asserts that Plaintiff failed to include a necessary party to this action. See ici

During the pendency of this action, Ms. Gill petitioned to revoke the Limited Letters of Administration from the Public Administrator of Kings County and acquire full Letters of Administration to make herself the administrator of Mr. Clement's estate.^[2] See Verified Petition to Remove the Public Administrator and Appoint Administrator D.B.N., No. 2011-2195/C/D, Petition filed 2/7/2018 (Kings Cnty. Sur. Ct.) ("Petition"); see also Order dated 2/1/2019; ECF Nos. 35, 41, The Court notes that in Ms. Gill's Petition for full Letters of Administration before the Kings County Surrogate's Court, Cheyvonne Clement and Jeanette Richards are listed as additional distributees. See Verified Petition to Remove the Public Administrator and Appoint Administrator D.B.N., No. 2011-2195/C/D, Affidavit filed 5/11/2018 (Kings Cnty. Sur. Ct.) ("Affidavit"). On December 18,2018, Ms. Gill's Petition was approved by the Kings County Surrogate's Court, and Ms. Gill was subsequently issued the full Letters of Administration. See Verified Petition to Remove the Public Administrator and Appoint Administrator D.B.N., No. 2011-2195/C/D, Decision filed 12/18/2018 (Kings Cnty. Sur. Ct.) ("Decision"); Ex. I; ECFNo. 37 at 5. In the Decision, Jared Clement, Nekisha Clement, Jewel Clement, Jeanette Richards and Cheyvonne Clement are listed as Mr. Clement's children. See Decision; ECF No. 37 at 5 n.2.

Plaintiff did not file an amended complaint naming Ms. Gill as the administrator of Mr. Clement's estate, did not serve Ms. Gill in her capacity as the administrator of Mr. Clement's estate, did not join Mr. Clement's estate as a party to this action, and, as previously noted in this Court's Report and Recommendation denying Plaintiffs motion for default judgment, did not name Cheyvonne Clement and Jeanette Richards as parties to this action. See ECF No. 37 at 5 n.2; see also Id. at 8 ("In addition, the omission of possibly necessary parties Jeanette Richards and Cheyvonne Clement as Defendants to this action may be a defense to complete relief."). This Court also had previously discussed with counsel the need to conduct research and propose a way to amend this action to join Ms. Gill as the administrator after the issuance of the Letters of Administration to Ms. Gill. See Minute Entry dated 2/1/2019, FTR 11:22-11:24.

II.DISCUSSION

"The necessary parties to a foreclosure action are those whose interest is claimed to be subject and subordinate to the plaintiffs Hen, such as the record owner or person having an estate or interest in the property or one holding a later Hen." See Dye v. Lewis, 67 Misc.2d 426, 429 (Sup. Ct. Monroe Cnty. 1971), order modified on other grounds, 39 A.D,2d 828 (4th Dep't 1972). "[T]he absence of a necessary party may be raised at any stage of the proceedings; by any party or by the court on its own motion." Estate of Prospect v. New York State Teachers' Ret. Sys., 13 A.D.3d 699, 700 (3d Dep't 2004) (internal quotation marks & citation omitted); see Lezette v. Bd. of Educ. Hudson City School Dist., 35 N.Y.2d 272,282 (N.Y. 1974). Under New York law and procedure, the estate is usually a necessary party to a foreclosure action when the mortgagor has died. See Bawiew Loan Servicing. LLC v Sulyman, 130 A.D.3d 1197, 1199 (3d Dep't 2015) ("We find that decedent's estate is therefore a necessary party to this action, as the rights, interests and equities of all of the parties claiming an interest in the mortgaged premises should be settled and determined before any judgment of foreclosure and sale is entered[.]" (quotations & alterations omitted)); see RPAPL § 1311(1) (listing as a necessary defendant "[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for...