Flender v Flender

[*1] Flender v Flender 2014 NY Slip Op 51876(U) Decided on December 23, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2013-1009 S C

Charles G. Flender and J.P. MORGAN CHASE BANK, N.A. as Co-Executors of the Estate of NORMA F. FLENDER, Respondents,

against

Sylvia S. Flender, Appellant.

Appeal from an order of the Justice Court of the Town of East Hampton, Suffolk County (Catherine A. Cahill, J.), entered May 16, 2013. The order denied occupant's motion, in effect, to vacate a stipulation of settlement and the final judgment entered pursuant thereto, in a licensee summary proceeding.

ORDERED that the order is reversed, without costs, occupant's motion, in effect, to vacate the stipulation of settlement and the final judgment entered pursuant thereto is granted, and the matter is remitted to the Justice Court for the entry of a final judgment dismissing the petition without prejudice.

In this summary proceeding by the co-executors of the estate of Norma F. Flender, one of whom is the son of the decedent, to recover possession of estate property on the ground that the license of occupant, the daughter of the decedent, to occupy the property had been terminated (see RPAPL 713 [7]), occupant moved, in effect, to vacate a stipulation of settlement in which she had consented to the entry of a final judgment and had been given 15 days to vacate. In support of her motion, occupant showed, among other things, that she had a right under the decedent's will to purchase the subject property and that her brother, petitioner Charles G. Flender, had frustrated that right by failing to disburse her share of the estate to her. On this appeal from an order of the Justice Court which denied her motion, occupant contends, among other things, that this summary proceeding properly belonged in Surrogate's Court.

We agree that the proper forum for this summary proceeding is the Surrogate's Court, as the issues herein are closely intertwined with the affairs of the decedent and the administration of the decedent's estate (see Matter of Piccione, 57 NY2d 290 [1982]; Dobric v Park Len N. Owner, Inc., 27 Misc 3d 126[A], 2010 NY Slip Op 50531[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, the order is reversed, occupant's motion, in effect, to vacate the stipulation of settlement and the final judgment entered pursuant thereto is granted, and, upon a review of the papers (see CPLR 409 [b]), the matter is remitted to the Justice Court for the entry of a final judgment dismissing the petition without prejudice.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: December 23, 2014