Matter of Deans

Matter of Deans 2009 NY Slip Op 09026 [68 AD3d 768] December 1, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Estate of Livingston Mandel Deans, Deceased. Valerie Gray et al., Respondents; Felipe Orner et al., Respondents. Real Spec Ventures, LLC, Nonparty Appellant.

—[*1] Albanese & Albanese, LLP, Garden City, N.Y. (Hyman Hacker of counsel), for nonparty appellant.

Felipe Orner, Flushing, N.Y., objectant respondent pro se, and for objectant respondent Jacklyn Deans.

Baker Greenspan & Bernstein, Bellmore, N.Y. (William R. Greenspan of counsel), for objectant respondent Brandon Deans.

In a proceeding to settle the account of Valerie Gray as the former coadministrator of the estate of Livingston Mandel Deans, nonparty Real Spec Ventures, LLC, appeals from so much of a decree of the Surrogate's Court, Queens County (Nahman, S.), dated September 30, 2008, as directed the cancellation of a mortgage which it issued in the amount of $370,000.

Ordered that the decree is modified, on the law, by adding to the fifth decretal paragraph thereof the words "to the extent of any interest held by the Estate of Livingston Mandel Deans" immediately following the words "State of New York"; as so modified, the decree is affirmed insofar as appealed from, without costs or disbursements.

For the reasons stated in our decision and order on the companion appeal, the Surrogate's Court lacked jurisdiction to direct the cancellation of the subject mortgage in its entirety (see Matter of Deans, 68 AD3d 767 [2009] [decided herewith]). Accordingly, the decree must be modified to indicate that the cancellation of the subject mortgage does not encompass the interests of any living persons in the property and is limited to any interest held by the estate of Livingston Mandel Deans.

In light of the foregoing, the appellant's remaining contention has been rendered academic. Dillon, J.P., Dickerson, Belen and Roman, JJ., concur.