Dobric v Park Len N. Owner, Inc.

[*1] Dobric v Park Len N. Owner, Inc. 2010 NY Slip Op 50531(U) [27 Misc 3d 126(A)] Decided on March 25, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 25, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2009-317 Q C.

Miladin Dobric, Appellant,

against

Park Len North Owner, Inc. and DAVID BARON as Executor of Estate of HATTIE G. MARTIN shareholder and owner of APARTMENT 3L, 118-21 QUEENS BOULEVARD, FOREST HILLS, NY 11375, Respondents.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Elizabeth J. Yalin Tao, J.), entered June 9, 2008. The final judgment dismissed the petition without prejudice.

ORDERED that the final judgment is affirmed without costs.

Petitioner commenced this unlawful entry and detainer proceeding (RPAPL 713 [10]) in April 2008, alleging that respondent David Baron is the executor of the estate of Hattie G. Martin, the owner of the shares allocated to the subject cooperative apartment, that Hattie G. Martin passed away on February 12, 2008, and that Baron locked petitioner out on that day. Petitioner also alleged that Hattie G. Martin had left a will in which she had bequeathed the apartment to him. On June 8, 2008, the Civil Court, following oral argument, dismissed the petition without prejudice, noting that there was a Surrogate's Court proceeding pending in which the will was being contested.

Since the property in question was the subject of a probate proceeding, petitioner should properly have brought his summary proceeding in Surrogate's Court (see Matter of Piccione, 57 NY2d 278 [1982]; Scherer, Residential Landlord - Tenant Law in New York § 7:44 [2009 ed]; cf. Sims v Manley, 120 AD2d 405 [1986], affd 69 NY2d 912 [1987]). Accordingly, the final judgment is affirmed.

We incidentally note that, subsequent to the entry of the final judgment herein, the Surrogate's Court, by order dated October 29, 2008, authorized the executor to sell the shares [*2]allocated to the apartment in order to satisfy the debts of the estate and that, according to the respondent's brief, the shares have now been sold.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 25, 2010