Upon the following papers numbered 1 to5read on this motion to dismiss; Notice of Motion/Order to Show Cause and supporting papers 1 - 2; Notice of Cross Motion and supporting papers:; Opposing papers:3-4; Reply papers5; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion (#001) by the defendant, Angela Mickens, for an order to dismiss the instant action, is denied; and it is further

ORDERED that movant is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(3).

This foreclosure action was commenced by filing on April 28, 2015. In essence, on January 26, 2005, William L. Lynch borrowed $99,759.42 from plaintiff's predecessor-in-interest and executed a promissory note and mortgage. Subsequently, on January 25, 2007, Mr. Lynch borrowed $40,925.64, and executed an additional note and mortgage. The two loans were then consolidated and Mr. Lynch executed a consolidated note and mortgage creating a single lien of $137,143.00. Mr. Lynch died on October 24, 2011, and the loan payments ceased as of January 28, 2012. The loan remains in default, as all remaining monthly installments remain due and owing. Angela Mickens is a named defendant in her capacity of heir at law and next of kin to Mr. Lynch.

Ms. Mickens filed the instant motion (#001), originally returnable July 17, 2015, seeking dismissal of the complaint pursuant to CPLR 3211(a)(11). Her counsel also filed a Notice of Appearance requesting that all papers in the action be served upon counsel. Thereafter, on July 28, 2015, the plaintiff filed an ex parte application (#002) via NYSCEF ^[FN1] seeking leave to complete service of a proposed supplemental summons by publication, as well as, the appointment of a guardian ad litem and military attorney. For reasons unknown, this latter application (#002) was reviewed before the defendant's motion (#001) and, on October 21, 2015 the Court issued an Order (Martin, A.J.S.C.) granting the application in its entirety. The defendant's motion (#001) remained undecided and was reassigned to this Part pursuant to Administrative Order No. 110-17, dated September 27, 2017 and submitted for decision on December 22, 2017.

The defendant contends that the complaint should be dismissed because the complaint seeks a deficiency judgment although the plaintiff failed to name a representative of decedent's estate as a defendant. The defendant also notes that dismissal is appropriate because the complaint fails to state: (1) the relational and distributee status of named defendants to the mortgagor, (2) whether the mortgagor died testate or intestate, and (3) whether a personal representative of the estate was appointed and joined.

The plaintiff's opposition notes that the intent when filing the complaint was not to include any language regarding a deficiency, and states that this intent is evidenced by the fact that the plaintiff did not name a representative of the decedent's estate as a party defendant. Further, the plaintiff did not name a defendant in the WHEREFORE paragraph of the complaint which states, "that the [sic] be adjudged to pay any deficiency which may remain." Additionally, plaintiff notes, the comparable paragraph in the summons states: "TO THE DEFENDANTS, except [sic]: The Plaintiff makes no personal claim against you in this action" thus again demonstrating that, because no defendant's name was inserted, a deficiency would not be sought as against any of the defendants. Finally, the plaintiff requests that the Court disregard the language pursuant to CPLR 2001 noting that no substantial right of any party will be prejudiced.

Due to the unique nature of foreclosure actions (see Jo Ann Homes v Dworetz, 25 NY2d 112, 302 NYS2d 799 [1969]), courts have held that the personal representative of the estate of a deceased mortgagor, who died intestate and against whom no deficiency judgment is sought, 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, [*2]159 NYS2d 417 [2d Dept 1957]; see also Salamon Bros. Realty Corp. v Alvarez, 22 AD3d 482, 802 NYS2d 705 [2d Dept 2005]; cf. Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, supra). Accordingly, a foreclosing plaintiff may prosecute its claims against the distributees of a deceased mortgagor only where said mortgagor died intestate and no deficiency judgment is sought by the plaintiff in such action (see Financial Freedom Senior Funding Corp. v Rose, 64 AD3d 539, 883 NYS2d 546 [2d Dept 2009]; Salamon Bros. Realty Corp. v Alvarez, 22 AD2d 482, supra; Winter v Kram, 3 AD2d 175, supra). Where the deceased mortgagor died testate, or where he or she was personally liable on the mortgage note or bond and the plaintiff seeks a deficiency judgment against him or her in its mortgage foreclosure complaint, the plaintiff cannot proceed against the distributees of the deceased mortgagor, but instead, must proceed against the personal representative of the estate of the deceased mortgagor (see Jordan v City of New York, 23 AD3d 436, supra; Countrywide Home Loans, Inc. v Keys, 27 AD2d 247, 811 NYS2d 362 [1st Dept 2006]; Dime Sav. Bank of NY, FSB v Luna, 302 AD2d 558, supra).

Here, the plaintiff's intent to not seek a deficiency judgment is evident from a review of the record before the Court. The plaintiff acknowledges that it erred in including the language that it did in the complaint, and notes that it will seek to correct same. Although the Court wonders why this correction was not completed with the subsequent ex parte application for publication, same is of no consequence. Thus, the defendant's allegation that plaintiff failed to name a representative is without merit, as a representative is not a necessary party here where the plaintiff has demonstrated that a deficiency judgment will not be sought. The Court notes, the defendant will suffer no prejudice as a result, as she is named solely as heir-at-law and next of kin of the decedent. The Court notes, the defendant's remaining requests for dismissal for plaintiff's failure to indicate in the complaint whether the mortgagor died intestate and how each party is related to the mortgagor are without merit, and defendant fails to demonstrate how either would serve as a basis for dismissal.

Accordingly, the defendant's motion (#001) is denied.