Matter of O'Hara

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[*1] Matter of O'Hara 2016 NY Slip Op 50189(U) Decided on February 10, 2016 Surrogates's Court, Queens County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 10, 2016
Surrogates's Court, Queens County

In the Matter of the Petition of Maura Goodwin as Executor of the Estate of James O'Hara, Deceased, For the ejectment of James J. O'Hara, Robert O'Hara and Bill Linehan from the premises known as 39-60 59th Street, Woodside, NY for the purpose of the sale of such premises and distribution of the proceeds to the beneficiaries of the decedent.



1994-3475/A



Attorney for petitioner Maura Goodwin

George Neofitos, Esq.

Markotsis & Lieberman, P.C.

115B Broadway, Suite 2

Hicksville, NY 11801

Attorney for respondent James J. O'Hara

Harriette N. Boxer, Esq.

31 East 32nd Street, Suite 300

New York, NY 10016
Peter J. Kelly, J.

This is a proceeding commenced by the executor seeking, inter alia, the ejectment of a tenant, and two of the decedent's sons, James and Robert O'Hara, from the real property located at 39-60 59th Street Woodside, New York, as well as the delivery of possession of such premises to the petitioner.

The petition was subsequently withdrawn against the tenant after he voluntarily vacated the premises. The respondent, Robert O'Hara, also vacated the premises subsequent to the commencement of this action. The sole remaining respondent, James J. O'Hara, has filed an answer objecting to the relief and asserting the affirmative defenses of statute of limitations, [*2]adverse possession and laches.

Respondent now moves to dismiss the petition on the grounds that the Court does not have subject matter jurisdiction to grant a judgment of ejectment [CPLR 3211 (a)(2)] and that the action is barred by the statute of limitations [CPLR 3211 (a)(5); SCPA 1903(3)].

Petitioner, in opposition to the motion, contends that the Court has subject matter jurisdiction since the executor has the power to take possession of the property for sale pursuant to EPTL 11- 1.1(b)(5) and that the Court may authorize a sale of the real property for purposes of distribution pursuant to Article 19 of the SCPA. Petitioner also contends that SCPA 1903(3) is inapplicable herein and that there is no statute of limitations within which a fiduciary must institute a proceeding to sell real property for purposes of distribution, citing Matter of Lynch, 80 AD2d 959.

The facts of the matter are as follows:

James O'Hara Sr. died testate on April 7, 1994, the sole owner and a resident, along with several of his children, of the property that is the subject of this proceeding. The real property consists of a three family home located in Woodside, New York. The decedent was survived by his eight children, and his Last Will and Testament, dated April 24, 1981, was admitted to probate on August 10, 1994. Letters testamentary issued to one of the decedent's daughters who is the petitioner herein.

Insofar as is applicable, the decedent provided in his will that his residuary estate would pass to his children equally upon all reaching majority. Petitioner concededly marshaled all of the estate assets, paid all estate taxes and debts of the decedent and, apart from the subject real property, distributed the net estate equally to the residuary beneficiaries pursuant to the terms of the will. New deeds to the subject real property were never executed, so the last recorded deed remained in the names of the decedent and his predeceased wife.

At the time of the decedent's death, five of his eight children, including James, were residing in the premises. Three of the decedent's daughters subsequently moved out of the premises within the next four years while James and Robert remained. As stated above, Robert eventually vacated the premises during the early stages of this proceeding and James continues to inhabit one of the apartments.



In 2004, some ten years after the decedent's death, the property was in disrepair and all of the beneficiaries apparently agreed to take out a home equity line of credit on the property, against which $100,000.00 was borrowed. The requisite documents were signed by all of the O'Hara children individually. The

executor acknowledges in her petition that the subject real property is "owned by the O'Hara children as tenants in common by virtue of their being the residuary beneficiaries of the decedent's estate" and alleges that all of the O'Hara children assumed control of the premises.

It is also apparent that in the years since the decedent's death, rents have been collected, repairs have been made, and several of the decedent's children have contributed funds toward the operational expenses of the house. While the amounts and accuracy of the above allegations are disputed, there is no evidence that the executor, in her fiduciary capacity, ever managed the property and she, essentially, acquiesced to the actions that took place.

Turning to the legal issues presented, the respondent relies upon SCPA 1903(3) in [*3]support of his defense that this proceeding is time barred. This statute imposes a ten year statute of limitations, running from a decedent's death, in which a proceeding to satisfy a legacy charged on real property can be instituted. Petitioner claims the statute is inapplicable as this proceeding seeks an ejectment of James so that the fiduciary can effectuate distribution of the assets per EPTL 11-1.1 (b) (5) as well as SCPA 1901 and 1902.

Yet what the parties fail to appreciate, is that the statutes relied upon are only applicable in proceedings in which there is a nexus between the relief requested and the administration of an estate [see, In re Marino, 36 Misc 3d 1215(A)]. Based upon the facts before the Court, therefore, the first real issue to



be determined is whether such a nexus exists or whether this Court lacks subject matter jurisdiction given the manner in which the parties managed and operated the real property and the length of time that has transpired since the decedent's death.

The Surrogate's Court has broad jurisdiction over matters relating to the affairs of decedents (SCPA § 201; Matter of Piccione, 57 NY2d 278), which would include the determination of eviction or ejectment proceedings in the proper circumstances. The passage of 20 years from the time of the decedent's death to the institution of this proceeding is a factor to be considered by the Court, but, standing alone, may not be determinative. Indeed, in Matter of Lynch, 80 AD2d 959, the Appellate Division, Third Department permitted the sale of real property over the objection of several distributees some 18 years subsequent to decedent's death.

Title to real property devised under a will vests in the beneficiary at the moment of the testator's death (Matter of Seviroli, 31 AD3d 452, citing Waxson Realty Corp. V. Rothschild, 255 NY 332, Barber v. Terry 224 NY 334, and Matter of Payson, 132 Misc 2d 949). Unless otherwise directed by the will, the executor does not take title to the real property of the testator since title vests in the devisees subject only to divestment pursuant to court order to pay estate debts (see, DiSanto v Wellcraft Mar Corp, 149 AD2d 560,562 citing Matter of Rich,27 Misc 2d 364,371).

With the above in mind, a critically important fact, as previously stated, is that the executor alleges in her petition that there were sufficient assets, apart from the subject real property, to meet the expenses and debts of the estate and that the net estate had been distributed many years ago. Furthermore, given the facts before the Court, it is indisputable that the beneficiaries have treated the property as their own since the decedent's death. The beneficiaries assumed control of the premises, resided on the property at various times, made repairs and improved the real property, collected rents, obtained a home equity line of credit in their individual capacities, and evidently entered into a virtual landlord/tenant arrangement with their siblings, Robert and James, who continued to reside in the premises following the decedent's death, even endowing James with management responsibilities. Accordingly, there is no proof in the record that the real property herein was ever subject to divestment by the fiduciary (see, EPTL § 11-1.1[b][5][B]; SCPA § 1902).

On the foregoing facts, title to the real property at issue passed "by virtue of the instrument itself" (Corley v McElmeel, 149 NY 228) and upon the admission of the decedent's will to probate, the "O'Hara children" became tenants in common of the property more than twenty years ago. The Court finds that the beneficiaries took the property [*4]in kind, as demonstrated by their actions following the decedent's death in 1994, and behaved as co-owners. The real property's character as an estate asset therefore was negated and the power of the executor to take possession in order to sell the property for purposes of distribution was lost by the very actions of the beneficiaries as co-tenants (See, In the Matter of the Estate of Van Dorn, 225 AD2d 969).

On the above unique facts, it is abundantly clear that the real property at issue here cannot be considered an estate asset as the parties became co-tenants at the decedent's death and have managed and controlled the property in such capacity for the last twenty years. Accordingly, this Court lacks subject matter jurisdiction to determine the existing dispute between the co-tenants (cf. Matter of Piccione, supra ).

To the extent that the petitioner is seeking to obtain a forced sale of the property in order for the parties to liquidate their interests, obtain an accounting by the respondent for the income and expenses of the property and potentially surcharge the respondent's ownership interest from the proceeds of such sale, this relief more appropriately lies in a partition action which is properly commenced in Supreme Court (see generally, RPAPL §901, et. seq.).

Accordingly, the branch of the motion to dismiss the petition pursuant to CPLR 3211(a)(2) is granted and the balance of the motion is denied as moot.

Settle decree.



Dated: February 10, 2016

___________________________

SURROGATE