Death of Party in Default Does Not Stay Action

On October 7, 2026, the Second Department issued a decision in NYCTL 1998-2 Trust v. Phillip, 2026 NY Slip Op. 05802, holding that the death of a party in default did not stay an action, explaining:

In July 2016, the plaintiffs commenced this action against, among others, Llewellyn Phillip (hereinafter the decedent) to foreclose a tax lien on certain real property located in Brooklyn (hereinafter the property). The decedent failed to timely appear or answer the complaint. A judgment of foreclosure and sale was issued, upon the decedent’s default, on May 1, 2019. Thereafter, a tax lien sale of the property was scheduled.

. . .

On June 7, 2021, the decedent died. On October 8, 2021, the Surrogate’s Court issued restricted letters of administration for the decedent’s estate to the defendants Lauri-Lei Phillip and Lauri-Anne Phillip (hereinafter together the defendants).

. . .

Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent. In most instances a personal representative appointed by the Surrogate’s Court should be substituted in the action to represent the decedent’s estate. If ‘a party’s death does not affect the merits of a case, such as where a default judgment is entered against a borrower in an action to foreclose a mortgage, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution.

Here, the decedent was properly served with process pursuant to CPLR 308(2). The decedent thereafter failed to timely appear or answer the complaint. Under these circumstances, there was no need for strict adherence to the requirement that the action be stayed after the decedent’s death pending substitution. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was to vacate the May 2022 orders.

(Internal quotations and citations omitted).

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