It is, ORDERED that this motion (# [*2]

001) by the plaintiff for, among other things, an order fixing the defaults of the defendants served with process and an order appointing a referee to compute the amounts due under the terms of the note and mortgage that are the subject of this foreclosure action, is considered under CPLR 3215 and RPAPL Article 13 and is denied.

The record adduced on the instant application reveals that the mortgagor and sole obligor under the mortgage note, namely, John Balbi a/k/a John C. Balbi, died some seven months prior to the plaintiff's commencement of this action in August, 2008. Neither the complaint served and filed herein nor any of the moving papers contain factual allegations regarding whether the deceased mortgagor died testate or intestate. Nor do any of the papers contained allegations regarding whether a personal representative of the estate of the deceased mortgagor has been appointed. For the reasons set forth below, the absence of those factual allegations warrants a denial of this motion.

While the plaintiff has joined persons described as "heirs" of the deceased mortgagor as party defendants to this action, the joinder of such persons as party defendants is jurisdictionally defective under the circumstances of this case. It is now well established that no action may be commenced against a person subsequent to his or her death and prior to the appointment of a personal representative of his or her estate (see Jordan v City of New York, 23 AD3d 436, 807 NYS2d 595 [2d Dept 2005]; Arbulaez v Chun Kuei Wu, 18 AD3d 583, 795 NYS2d 327 [2d Dept 2005]; Outing v Mathis, 304 AD2d 670, 757 NYS2d 483 [2d Dept 2003]). The fact that this rule is applicable to mortgage foreclosure actions is clear (see Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, 755 NYS2d 300 [2d Dept 2003]).

Nevertheless, some courts have held that the personal representative of the estate of a deceased mortgagor, who died intestate, is not a necessary party to a mortgage foreclosure action and that such action may be commenced or continued against the distributees of any such intestate mortgagor (see Winter v Kram, 3 AD2d 175, 159 NYS2d 417 [2d Dept 1957]; see also Salamon Bros. Realty Corp. v Alvarez, 22 AD2d 482, 802 NYS2d 705 [2d Dept 2005]; cf., Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, supra ; GMAC Mtg. Corp. v Tuck, 299 AD2d 315, 750 NYS2d 93 [2d Dept 2002]). Underlying this rule, is the legal maxim that real property owned by an intestate decedent devolves directly to his or her statutory distributees without the necessity of any act by an administrator of his or her estate (see Matter of Roberts, 214 NY 369, 108 NE 562 [1915]; Kraker v Roll, 100 AD2d 424, 474 NYS2d 527 [2d Dept 1984]).

The foregoing rule is inapplicable to decedents who die testate, rather than intestate, as the property of a testator or testatrix passes under the terms of the will, which is effective only upon its probate and the appointment of a personal representative of the estate. The rule is equally inapplicable where, as here, the decedent was personally liable on the mortgage note or bond and the plaintiff in a foreclosure action demands a deficiency judgment. In such cases, the personal representative of the decedent's estate is a necessary defendant in said mortgage foreclosure action (see Countrywide Home Loans, Inc. v Keys, 27 AD2d 247, 811 NYS2d 362 [*3][1st Dept 2006]; Graham v Lawyers Title Ins. Co., 20 AD 440, 46 NYS 1055 [1st Dept 1897]; In re Lust's Estate, 140 Misc 600, 251 NYS 556 [Bronx County, Surrogate's Ct. 1931]).

Here, the plaintiff failed to establish its entitlement to an order appointing a referee to compute pursuant to CPLR 3215 and RPAPL § 1321, respectively, as the court is unable to ascertain whether the plaintiff has viable claims for relief against the defendants joined herein. The absence of allegations regarding the relationships and distributee status of the named defendants to the defendant mortgagor, whether said mortgagor died testate or intestate, and whether a personal representative of his estate has been appointed and joined herein warrants a denial of this application.

Accordingly, the instant motion is denied without prejudice to the interposition of a new and further application upon proper papers. Such papers must include the plaintiff's determination of whether the loan at issue is subject to the provisions of CPLR 3408. The order is marked "not signed."

DATED: ___________________________________________

THOMAS F. WHELAN, J.S.C.