Matter of Morreale v Morreale

[*1] Matter of Morreale v Morreale 2013 NY Slip Op 51515(U) Decided on August 28, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2013
Sur Ct, Nassau County

JEFFREY DeLUCA, Public Administrator of Nassau County, as Administrator of the Estate of Albert Morreale, Deceased, Petitioner,

against

Alan Morreale, "JOHN DOE" and "JANE DOE", Respondents.



356975C



Mahon, Mahon, Kerins & O'Brien

(for Public Administrator)

254 Nassau Boulevard

Garden City South, NY

Marino & Bernstein

(for Respondents)

Townshend Square

Suite 210

Oyster Bay, NY 11771

Edward W. McCarty III, J.

Appointed as administrator, c.t.a. in this estate on September 7, 2012, the Public Administrator of Nassau County commenced this proceeding against the respondents to recover possession of decedent's real property located at 18 Horse Hollow Road in Locust Valley, New York [the"Property"] and for incidental relief including use and occupancy and to recoup sums for repairs for damages to the property. Respondents now move for an order pursuant to CPLR 3211 (a) (1) and (3) dismissing the petition.

Decedent died on February 26, 2009 survived by the respondent Alan, his son, and a daughter Elizabeth. His will dated February 9, 2009 was admitted to probate. Paragraph "FIFTH" of the will recites a bequest of the Property to Alan as follows:

"A. The right to reside in my house . . . (the "Property") for the rest of his life.

B. During the period of his occupancy he shall pay all real estate taxes, and all other expenses . . . and shall repair and maintain the Property. These payments are instead of any rent payment."

The remaining portions of the Paragraph address the disposition of the Property after Alan's demise or "removal" from the Property and direct that same be sold with the net proceeds [*2]

distributed as set forth therein.

In the petition, the Public Administrator cites SCPA 1902 and EPTL 11-1.1 (b) (5) as his authority to sell the Property to make certain payments on behalf of the estate and characterizes respondent's possession/occupancy of the Property as a mere right of occupancy, as opposed to a life estate, which is subject to termination by the administrator, c.t.a. What follows is a series of allegations relative to the service of a 30-day Notice to Quit under the Real Property Law and the respondents' continued occupancy in the face thereof necessitating the petition.[FN1] Neither the order to show cause nor the "WHEREFORE" clause of the petition themselves mention the words "sell" or "sale" or request the authority of the court to direct a sale.

Taking the bases for dismissal in inverse order, as the administrator, c.t.a. of this estate and the fiduciary responsible for the fee simple of the Property, under the relevant section of the RPAPL and SCPA, petitioner surely has the legal capacity to commence this proceeding to clarify the rights of the parties and if warranted dispossess the respondents. Contrary to respondents' argument, petitioner has commenced this separate proceeding as required under Article 19 of SCPA with, if not sufficient facts and supporting evidence to warrant relief as a matter of law, adequate facts regarding the condition of the estate to meet the pleading threshold. There is no basis to dismiss on the ground of CPLR 3211 (a) (3).

Turning to the argument for dismissal grounded on documentary evidence - the bequest above quoted from Paragraph "FIFTH" of the will - respondents urge same created an inviolate life estate incapable of termination by the Public Administrator. The Public Administrator counters that the will merely bestowed upon Albert Morreale the "privilege" to occupy the Property and did not create a life estate.

The Appellate Division, Second Department most recently has reiterated the standard for granting dismissal on the basis of documentary evidence and quoting the Court of Appeals it observed that dismissal is only warranted if " . . . the documentary evidence utterly refutes [the] . . . factual allegations, conclusively establishing a defense as a matter of law' (citations omitted)" (Benson v Deutsche Bank National Trust, 2013 NY App Div WL 4082695 [2d Dept 2013]).

Did the decedent's will grant a life estate? As was noted by the Surrogate of this court in Matter of Sauer (194 Misc 2d 634 [2002]):

Traditionally, the descriptive words denoting a life tenancy are use and occupation'' (Warren's Weed New York Real Property, Life Estates § 1.01 (2), [4th ed]). The distinction is critical as a right of occupancy is a personal privilege only (Matter of Cimino, NYLJ, Aug. 2, 1995, at 25, col 6). Where an agreement was drawn by an experienced lawyer and the usual words denoting a life tenancy use and occupation were not used,'the court found the party had merely a right to occupancy' as opposed to a life estate (Rizzo v Mataranglo, 16 Misc 2d 20, affd 16 Misc 2d 21, lv denied 285 App Div 814). Similarly, when the wife of the decedent was permitted to occupy, rent free, for her residential purposes,' the wife was found to have a mere right of occupancy' as the bequest was carefully drafted to avoid giving the use' of the premises [*3](Matter of Stokes, NYLJ, Dec. 29, 1995, at 31, col 5). Further indicia of a right of occupancy can be found where there is no language from which the added rights and responsibilities of a life estate can be implied' and no right exists to lease or collect rents and the responsibility for maintenance falls upon someone other than the life tenant (Matter of Stokes, supra).

A life estate has been found to exist where the decedent left her one-half of real property for the use and benefit' of her son for so long as he should wish to remain in residence there' and where the son was responsible for the payment of all taxes and maintenance for as long as he resided in the house (Matter of Heinlin, NYLJ, May 21, 1996 at 35, col 2; see also, Matter of Holzwasser, 177 Misc 2d 868). A declaration by a testator that his purpose in giving his wife a life estate was to provide her with a suitable residence did not act as a limitation of the estate to a mere occupancy' (Tobias v Cohn, 36 NY 363). Further, a devise of the use of a piece of property during the natural life of a person gives to that person a life estate in the property and not merely the right to occupy it (Matter of Gaffers, 254 AD 448).

Applying the tenets of Sauer and the authorities cited upon therein, the court

finds decedent's will granted a life estate in the Property to his son.

Such finding, however, does not cloak Alan Morreale's tenancy with invulnerability. Citing the traditional common law theory that any interest in real property passes immediately upon the death of the decedent as articulated in the case cited by them, Matter of Burke (129 Misc 2d 145 [Sur Ct, Cattaraugus County 1985]), Alan's attorneys argue that the life estate may not be disturbed. However, even as the court recognized in Burke, there is the exception that, when necessary for the payment of debts of the estate, a fiduciary may use specifically devised property to satisfy those obligations, and of course the statutory scheme of Article 19 of SCPA contemplates when, if and how the Surrogate may allow real property to be disposed, if necessary, even in the face of a specific bequest under the will (See Turano and Radigan, NY Estate Administration, §17.01, p. 587, 588 [2013 ed]). There is even a section of the statute (SCPA 1918) that takes into account the rights and obligations of a life tenant.As there is equally no basis to determine the petition as a matter of law on the bequest in the will, the motion on that ground is denied as well. Objections, if any, to the petition shall be filed pursuant to CPLR 3211 (f) within 20 days of the date hereof and this matter will appear on the court's calendar for conference on October 2, 2013, at 9:30 a.m.

This constitutes the decision and order of this court.

Dated: August 28, 2013

EDWARD W. McCARTY IIIJudge of theSurrogate' s Court Footnotes

Footnote 1:The Notice to Quit makes reference to occupants having a "month-to-month tenancy" as such a notice is required under RPL 232-b as a condition precedent to terminate a monthly tenancy or a tenancy from month to month.