Matter of Parisi

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[*1] Matter of Parisi 2018 NY Slip Op 28040 Decided on February 6, 2018 Surrogate's Court, Queens County Kelly, J. 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 printed Official Reports.

Decided on February 6, 2018
Surrogate's Court, Queens County

In the Matter of the Application David R. Glyn, as Executor of the Estate of Michael A. Parisi, Deceased. For Leave to Commence an Action to Partition Real Property.


Attorneys for Petitioner

Tamar S. Wise, Esq.

Matthew L. Elkin, Esq.


Attorneys for Respondent MJD Holdings, LLC

Michael L. Cirrito, Esq.


Attorneys for Respondent Camille Parisi

Christopher Ronan, Esq.


Attorneys for Respondent Joseph Parisi

Rudolph J. Karvay, Esq.

Peter J. Kelly, J.

The Respondent MJD Holdings, LLC moves for an order dismissing the petition pursuant to CPLR § 3211[a][2] and [4] for lack of subject matter jurisdiction and on the basis there is a prior action pending for the same relief in another court. In the alternative, the movant seeks the court to transfer this matter to New York State Supreme Court, Queens County.

Although the within proceeding was entertained by this court on June 1, 2017, the origin of this family's contentious litigations extend back nearly 40 years beginning with the estate of [*2]the Decedent's paternal grandmother, Carmela Parisi. The litigation in that estate was not finally settled until 2017. Since Carmela's death in 1979, her two children, Marie Durante nee Parisi and Joseph S. Parisi, have died. The estate of Joseph's wife, also named Marie, has generated substantial litigation of its own. When Marie died in 1998, she was survived by her husband, Joseph S. Parisi, as well as her children Camille Parisi, Michael A. Parisi, and Joseph M. Parisi. Joseph S. Parisi and Michael A. Parisi died during the litigation of Marie's estate.

At present, the parties to this litigation are Petitioner, the executor of Michael A. Parisi's estate, and the Respondents Camille Parisi, Joseph M. Parisi and MJD Holdings, LLC, the movant.

In the affirmation submitted in support of movant's motion to dismiss, counsel avers "[t]his is a proceeding for the partition of six (6) separate parcel of real property." The estate's interest in five of the six properties is 16.66% each and in the sixth property the estate's interest is 33.33%. In Petitioner's memorandum of law submitted in opposition to the motion, counsel states that the "Petitioner brings this action to partition six properties located in Maspeth, New York." Similarly, counsel for both Camille and Joseph refer to this proceeding as one for partition.

However, this is plainly not a proceeding to partition real property pursuant to Article 9 of the Real Property Actions and Proceedings Law. The petition expressly provides in its caption and in the wherefore clause that this is a proceeding "for leave" to commence a partition action pursuant to Article 19 of the Surrogate's Court Procedure Act. In addition, the petition seeks as relief an order that the court "exercise jurisdiction over the Partition Action" pursuant to SCPA § 201[3].

Based on the foregoing, the branch of the motion to dismiss pursuant to CPLR § 3211[a][4] fails. While it is undisputed that there is an action for partition pending in the Supreme Court, Queens County concerning the properties at issue in this proceeding, the same cause of action is not pending here.

The branch of the motion to dismiss pursuant to CPLR § 3211[a][2] for lack of subject matter jurisdiction also appears to suffer from a fatal defect because a proceeding for permission to commence a partition action under SCPA § 1901 is within the exclusive jurisdiction of the Surrogate's Court. However, as all the parties operated under the assumption that this was, in fact, a partition action, in the interest of judicial economy, the court will, under CPLR § 3211[c], treat this branch of the motion as one for summary judgment and address the issue of whether this court has the subject matter jurisdiction to permit the commencement of an action for partition in the Surrogate's Court.

The subject matter jurisdiction of the Surrogate's Court has, since the Court of Appeals' decision in Raymond v Davis, 248 NY 67, been "steadily expanding" (In re Estate of Piccione, 57 NY2d 278, 287). The Surrogate's Court's subject matter jurisdiction originates in the New York State Constitution which provides the court's power extends "over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto" (NY Const, art VI, § 12 [d]). The Surrogate's Court Procedure Act legislatively codifies this grant of jurisdiction and states the Surrogate's Court's has "all the jurisdiction conferred upon it by the Constitution and all other authority and jurisdiction now or hereafter conferred upon the court by any general or special [*3]statute or provision of law, including this act" (SCPA § 201 [1]). Indeed this court's powers are so broad that, "'for the Surrogate's Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate'" (In re Estate of Piccione, supra at 288, citing Matter of Young, 80 Misc 2d 937, 939). The Surrogate's Court powers to fulfill its jurisdictional mandate are "full and complete general jurisdiction in law and in equity to administer justice" (SCPA § 201[3]). Moreover, so long as the Surrogate's Court has subject matter jurisdiction over a controversy, its powers are equal to that of the Supreme Court (SCPA § 209[10]).

Based upon this broad definition of this court's subject matter jurisdiction, an action for partition, would, at least conceptually, fall within this court's constitutional and statutory mandate (See, Matter of Wagenstein, 82 AD3d 628).

Nevertheless, the Surrogate's Court's subject matter jurisdiction is not unlimited (See, Matter of O'Connell, 98 AD3d 673). Dissimilar from courts of general jurisdiction, like the New York State Supreme Court where subject matter is "presumed," in a court of limited jurisdiction, like the Surrogate's Court, subject matter jurisdiction must be specifically demonstrated when challenged (See, Siegel, New York Prac § 8 at 10 [3rd ed 1999]). Hence, matters between living persons independent of a decedent's estate are not matters which this court may resolve (See, In re Estate of Wallace, 239 AD2d 14; In re Estate of Lainez, 79 AD2d 78; Matter of Mannion,Misc 3d, 2008 NY Slip Op 30833[U]). Determination of what subjects are related to the "affairs of decedents" or are disputes between living persons is not resolvable through "bright-line demarcation" (3rd Warren's Heaton Surrogate's Court Practice §2.02[3][a] at 2-18 [7th ed]).

Given these evaluative parameters, an examination of the subject matter of the Surrogate's Court cannot be focused solely on the rigid concept of this court's competence to adjudicate a matter. Rather, whether a matter concerns the "affairs of a decedent" would appear to require a qualitative decision that it is appropriate for the Surrogate's Court address a disputed issue under the presented circumstances.

In this court's analysis, a general holding that the Surrogate's Court has the blanket authority to adjudicate a partition action in every instance where a decedent's estate is a co-tenant-in-common in real property is not supported by the case law and expansion of this court's jurisdiction in this regard is unsustainable (See, Matter of Birnbaum, 131 Misc 2d 925). To do so would unquestionably yield untenable consequences. For example, an estate holding just a minuscule interest in real property could commence a partition action in this court despite there being a near immaterial relation to the decedent's affairs.

The substantive legal requisites of a partition action raise an additional jurisdictional quandary to the prosecution of a partition action in this court. In a partition action, the court is required to permit creditors against all the parties' partitioned shares to be joined (RPAPL § 904[2]) and, even where not joined, to consider and provide for creditors' liens in its interlocutory judgment (RPAPL § 913, 929 and 962). While the disposition of a creditor's claims against a partition share belonging to the estate is a matter related to the affairs of a decedent, disputes between living parties, in particular creditors to living parties, are clearly not within this court's jurisdiction (See e.g., In re Estate of Lainez, supra; Matter of Mannion, supra). Consequently, if a creditor obtains and records a judgment against a co-tenant-in-[*4]common of real property that is the subject of a partition action, but whose interest is not owned by the estate, the Surrogate's Court would be required to make provision for that lien in its interlocutory judgment even though that action would appear outside the court's jurisdiction.

Notwithstanding the foregoing problems, at least one court has determined under the circumstances presented before it that transfer of a partition action to the Surrogate's Court was "eminently reasonable and proper" (See, Matter of Wagenstein, supra). Unlike the present case, the only two parties to the partition action in Wagenstein were the sole distributees and legatees of the decedent and were the only parties interested in the property at issue. Further, since the real property was owned by an inter vivos trust, resolution of the jurisdictional issues turned almost exclusively on the court's expansive jurisdiction over trusts under SCPA § 207 (Id. at 631). Another court indicated in dicta that it would "consider whether it had jurisdiction" over a partition action where "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" (See, Matter of Lewis,Misc 3d, 2008 NY Slip Op 52528[U]).

None of those circumstances are presented here. In all the properties, the estate holds the overwhelming minority interest, and in five of the six, the estate's interest is just 16.66%. The other co-tenants, who are the majority holders of the disputed real property, are not legatees under the Decedent's will nor are they parties directly interested in the administration of his estate. Further, the expedient resolution of remaining estate matters does not appear to be the manifest priority for the parties involved in the subject litigation.

Accordingly, the Respondent is granted summary judgment and the within proceeding is dismissed for lack of subject matter jurisdiction.

This is the decision and order of the court.

Dated: February 6, 2018


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