Matter of Lewis

[*1] Matter of Lewis 2008 NY Slip Op 52528(U) [21 Misc 3d 1147(A)] Decided on December 19, 2008 Sur Ct, Bronx County Holzman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2008
Sur Ct, Bronx County

In the Matter of the Estate of Iris Lewis, Deceased.



576-A/06



Reginald Asiedu, P.C., (Reginald Asiedu, Esq., of counsel) for Georgia L. Wollery, adminsitratrix c.t.a

Frank J. Loverro, Esq., for Joseph Farquharson, respondent

Lee L. Holzman, J.

This is a proceeding seeking a decree directing the sale of real property in which the decedent owned a one-half interest as a tenant in common with the respondent, her son. The administratrix d.b.n., the decedent's daughter, also seeks related relief with respect to the sale of the real property. The petitioner contends that this court has jurisdiction under SCPA article 19 to direct the sale of the real property. The respondent concedes that it is appropriate for the petitioner to commence a partition action; however, he contends that the partition action must be commenced in the supreme court.

The surrogate's court clearly has jurisdiction pursuant to SCPA 1901 to direct the sale or other disposition of a decedent's interest in real property for any of the purposes set forth in SCPA 1902. However, the issue herein is whether the surrogate's court has jurisdiction under SCPA article 19 to direct, not only the sale of a decedent's interest as a co-tenant in the real property, but also the sale of the interest of another co-tenant.

SCPA 1901 (2) (i) provides that where "the estate. . . is the owner . . . in common in real property," the fiduciary "may bring a partition action or intervene in a pending partition action on behalf of the estate, if, upon application duly made, the surrogate approves." In Matter of Birnbaum (131 Misc 2d 925 [1986]), Surrogate Ciaccio held that SCPA 1901 (2) (i) did not confer jurisdiction upon the surrogate's court to adjudicate a partition action involving the respective rights and remedies of the co-owner of the property. Specifically, he noted that prior to 1975, it was the owners in common who inherited the real property from the decedent, and not the fiduciary of an estate, who had standing to be a party in a partition action. Consequently, when RPAPL 901 (4) was enacted to authorize a fiduciary to commence or participate in a partition action, SCPA 1901 (2) (i) was also enacted, effective June 24, 1975, to add "a step to [*2]the partition action where an estate is involved" by requiring the surrogate's approval, upon notice to the beneficiaries who inherited the property from the decedent, before the fiduciary of an estate may become involved in a partition action and "it does not grant to the Surrogate any additional authority to determine the merits of partition" (131 Misc 2d at 928).

Notwithstanding that title to realty technically vests in a decedent's distributees or the devisees under a will, SCPA article 19 does confer jurisdiction upon the surrogate's court to sell a decedent's interest in realty. Pursuant to SCPA 1902 (6), the court may authorize the sale of a decedent's interest in realty even though the purpose of the sale is to collect the proceeds for distribution and payment to the decedent's distributees or the devisees under a will, as the case may be. The issues in such proceedings are often similar to the issues raised in partition actions. Thus,

in light of the expanding jurisdiction of the surrogate's court in matters relating to the affairs of decedents or the administration of their estates (see Matter of Piccione, 57 NY2d 278 [1982]), if this was a case of first impression involving realty in which the decedent had a majority interest as a tenant in common, and the expeditious adjudication of a partition action was essential to the proper administration of an estate, this court would consider whether it had jurisdiction over the proceeding. However, no such special circumstances have been presented here. Moreover, it is well settled that SCPA 1901 (2)(i) was not enacted with the intent that the surrogate's court be required to entertain jurisdiction in a partition action involving the rights of a living tenant in common who has a 50% interest in the realty that he did not obtain through the decedent (see Matter of Birnbaum, 131 Misc 2d at 925; Matter of Dickson, NYLJ, Jan. 10, 1995, at 28, col 2; Matter of Rupolo, NYLJ, Jan. 6, 2005 at 27, col 2)

Accordingly, the petition is granted solely to the limited extent that it is deemed an applications seeking court approval of the commencement of a partition action in the supreme court, and that application is granted.

Settle decree



SURROGATE