Death of a Litigant Revisited

By: Jonathan H. Freiberger

The death of a litigant during the pendency of a lawsuit is not uncommon. In this BLOG’s “Death of a Litigant,” we discussed the ramifications of such a death. As noted in prior BLOG articles, CPLR § 1015 – Substitution Upon Death – is instructive and provides:

(a) Generally. If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.

(b) Devolution of rights or liabilities on other parties. Upon the death of one or more of the plaintiffs or defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or against the surviving defendants, the action does not abate. The death shall be noted on the record and the action shall proceed.

The procedure for the substitution of a party, whether due to death or otherwise, is set forth in CPLR § 1021 and the extensions of time necessary to tend to the procedural steps involved with the substitution of a party are governed by CPLR § 1022.

Significantly, the “death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity.” Hayden v. Brown, 230 A.D.3d 657, 658 (2^nd Dep’t 2024) (citations and internal quotation marks omitted); see also Fazilov v. Acosta, 228 A.D.3d 910, 911 (2d Dep’t 2024); Nationstar Mortgage, LLC v. Persaud, 231 A.D.3d 842, 843-45 (2d Dept. 2024) (citations and internal quotation marks omitted).[1] The proceedings are generally stayed “pending the substitution of a personal representative for the decedent.” Wells Fargo Bank, N.A. v. Miglio, 197 A.D.3d 776, 777 (2d Dep’t 2021) (citations and internal quotation marks omitted); see also Champion Mortgage v. Williams, 249 A.D.3d 826, 826 (2d Dept. 2026) (citations and internal quotation marks omitted).

This rule, however, is not set in stone. For example, “if a party’s death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution.” Wells Fargo, 197 A.D.3d at 777 (citation and internal quotation marks omitted). In Wells Fargo, the mortgagor/property owner died intestate, and the mortgagee/lender was not seeking a deficiency judgment. Under those circumstances, the Court determined that the mortgagor/property owner's death did “not affect the merits of a case, [and] there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution.” Id. (citations and internal quotation marks omitted). Similarly, the Court in Nationstar Mort., LLC v. Harrilall, 244 A.D.3d 985, 986 (2d Dept. 2025), relying on Wells Fargo, supra, determined that proceedings need not be stayed because the decedent was in default in appearing for several years at the time of death.

Against this backdrop, today’s article discusses Deutsche Bank Nat. Trust Co. v. Unknown Heirs to the Estate of Jacinto Ortiz, a case decided on July 29, 2026, by the Appellate Division, Second Department. In 2013, the lender in Deutsche Bank commenced a mortgage foreclosure action against the borrower (the “Decedent”), among others. Thereafter, the lender served an amended complaint in which it alleged that the Decedent died prior to the commencement of the action. The Decedent died intestate. One of the Decedent’s heirs moved to dismiss the action as against her pursuant to CPLR 1021 and 3211(a)(8) because the mortgagor died prior to the commencement of the action. The motion court granted the motion and the lender appealed.

The Second Department reversed. First, the Court stated that an “action commenced against a deceased defendant is a nullity only insofar as asserted against that defendant, not insofar as asserted against other defendants.” (Citation and internal quotation marks omitted.) Thus, the court concluded that the action was a nullity against the decedent only and not any other defendant, including the movant heir.

Further, because the Decedent died intestate and no deficiency judgment was sought against the estate, the estate was not a necessary party to the action. In this regard, the Court stated:

Moreover, where a property owner dies intestate, title to real property is automatically vested in his or her distributes. Thus, where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees. Here, because the decedent died intestate, and because the plaintiff no longer seeks a deficiency judgment, the decedent’s estate was not a necessary party, and the plaintiff could proceed directly against the distributees of the decedent’s estate.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] In addition, the “death of a party terminates his or her attorney's authority to act on behalf of the deceased party.” Hayden, 230 A.D.3d at 658 (citations and internal quotation marks omitted); see also Ford v. Luckain, 247 A.D.3d 990, 991-92 (2d Dept. 2026) (citations omitted).