Matter of Neller

Matter of Neller 2020 NY Slip Op 08067 Decided on December 30, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
ANGELA G. IANNACCI, JJ.
2019-03174

[*1]In the Matter of Mary Neller, deceased. Paul P. Neller, et al., respondents; Georgianna Neller, et al., appellants. (File No. 733/11)

John Newman, Huntington, NY, for appellants.

Michael Camporeale (John Z. Marangos, Staten Island, NY, of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to SCPA 1902 and EPTL 11-1.1, inter alia, to recover possession of real property and damages for the nonpayment of use and occupancy, Georgianna Neller and William Neller appeal from a decree of the Surrogate's Court, Richmond County (Matthew J. Titone, S.), dated February 22, 2019. The decree, after a nonjury trial, and upon an order of the same court (Robert J. Gigante, S.) dated December 20, 2018, awarding the petitioners damages for use and occupancy, is in favor of the petitioners and against Georgianna Neller and William Neller in the sum of $108,000.

ORDERED that the decree is affirmed, with costs.

The petitioners commenced the instant proceeding against Georgianna Neller and William Neller (hereinafter together the appellants), who are distributees of the decedent, seeking, inter alia, to recover possession of the subject real property and damages for the nonpayment of use and occupancy. The Surrogate's Court directed the appellants to vacate the property. Further, after a nonjury trial, the court entered a decree awarding the petitioners damages for use and occupancy in the sum of $108,000.

We agree with the determination of the Surrogate's Court awarding damages for use and occupancy in the sum of $108,000. Under the circumstances of this case, the appellants are liable, by operation of statute, for such payments (see EPTL 11-1.1[b][5][A]; Matter of Seviroli, 31 AD3d 452, 454; Johnson v Depew, 38 AD2d 675).

The appellants' remaining contentions are without merit.

RIVERA, J.P., COHEN, HINDS-RADIX and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court