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Court Discusses Disposition of Real Property in Probate Proceeding

A New York Probate Lawyer said this action emanates from a foreclosure proceeding involving property located in New York. That property was owned by a woman who died intestate. Her brother administered her estate as voluntary administrator. It appears, although it is not entirely clear, that the brother was his sister’s sole distributee and that the subject property vested in him immediately upon his sister’s death. The brother then died estate. A cousin was appointed the voluntary administrator of the brothers’ estate. The court’s file contains the brothers’ original will which devises and bequeaths all of his property to his cousin. The cousin died and there was no deed executed from the estate of the woman to her brother, nor was there a deed from the estate of the brother to his cousin. Although the brother’s original will was filed in the court by his cousin incident to the voluntary estate administration of the brother, the will was never offered for, or admitted to, probate. The complainants are the non-marital children of the cousin, the administrators of his estate, and claim to be his only distributees.

A New York Will Lawyer said the real estate taxes at the subject property were delinquent and one woman purchased a tax lien from the County of Nassau. In April 2002, she commenced a tax lien foreclosure action on the tax lien. The notice required to be sent pursuant to Nassau County Administrative Code was sent to the person occupying the property and to the Public Administrator of Nassau County as the administrator of the estate of the woman, the Public Administrator having been appointed as such pursuant to a creditor’s petition filed by the woman.

The underlying action by the complainants is to vacate the tax lien foreclosure sale, the deed by which the current owners of record, the defendants obtained title, and the mortgage placed on the property by the defendant incident to the purchase of the property by the defendants. The complainants contend that as the fee owners of the subject property at the time the foreclosure action was commenced, they were entitled to notice of the proceeding and the failure of the woman to provide that notice requires the vacating of the judgment in the foreclosure action and all subsequent deeds and mortgages.

A Nassau County Probate Lawyer said the defendant moves to dismiss the complaint on two grounds. First, they contend that it has not been established that the complainants are the distributees of the cousin and thus have no standing to bring the Supreme Court action; the court disagrees. The complainants were appointed the administrators of the estate of the cousin by decree of the court and letters of estate administration issued to them. Letters granted by the court are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed or modified upon appeal or the letters are suspended, modified or revoked by the court granting them. The complainants thus clearly have standing to commence and maintain the action in their capacities as the administrators of the estate of the cousin.

The defendant also contends that the complainants have made claim to the surplus monies from the tax lien foreclosure sale and that they have therefore ratified the tax foreclosure sale they are seeking to vacate. The motion is denied.

With regard to the complainants’ cross-motion for summary judgment dismissing the defendant’s answer, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.

Here, Suffolk County Probate Lawyers said the complainants have failed to establish that they are entitled to judgment, let alone judgment as a matter of law. Even assuming that either the complainants, individually, or the estate of the cousin were, at the time of the foreclosure action, the fee owners of the property, the issue is whether the notice given by the woman to the administrator of the estate was reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

At the time the foreclosure action was commenced, the records of the County Clerk indicated that the last deed of record affecting the property named the sister as the owner and there is no dispute that the Public Administrator of Nassau County, as the administrator of the estate of the sister, was properly served with notice of the foreclosure action. The records of the court are less clear regarding who the owner of the property was and whether the notice sent by the woman was adequate. As indicated above, the sister died intestate. Her brother was appointed voluntary administrator of her estate. He identified himself in the affidavit submitted in connection with his appointment as voluntary administrator as the sole distributee of the sister. Also as indicated above the Court’s file contains her brother’s original will which bequeaths and devises all his property to his cousin. Although the will has not been admitted to probate, it appears to have been drafted by an attorney, witnessed by two people, and contains an attestation clause, which may be sufficient to constitute a valid devise even absent the will’s admission to probate.

Nevertheless, neither of the complainants had petitioned for appointment as administrator of the cousin’s estate, two months after the commencement of the foreclosure action and nearly two years after the cousin’s death. Also, it does not appear that either of the complainants notified the County Treasurer of their claim of ownership or directed that the Treasurer send future tax bills to them. Thus, it is entirely unclear whether the woman or the Treasurer had any knowledge of the complainants’ claims, their identities, or their whereabouts.

The uncertainty regarding the complainants’ claim to the property is further revealed in the affirmation of one of their attorneys, in his affirmation in support of the complainants’ cross-motion for summary judgment. In his affirmation he avers that he was unable to come to a definite legal conclusion whether or not the ownership interests of the cousin in the Property had been properly extinguished in the foreclosure action. The court is similarly unable to reach a conclusion on the state of the record as it now stands. Since the complainants have failed to establish their right to summary judgment dismissing the answer as a matter of law, the court need not consider the sufficiency of the opposing papers. Accordingly, the cross-motion to dismiss the answer is denied.

The complainants have also cross-moved to dismiss the defendant’s fourth affirmative defense to the extent that the complainants’ claim to the surplus monies must be deemed a ratification of the foreclosure sale. As indicated above, the court concludes that their claim to the surplus monies does not constitute a ratification of the tax lien foreclosure sale and the cross-motion is therefore granted to that extent.

The complainants have also cross-moved to dismiss the defendant’s affirmative defense that the complainants do not have standing to prosecute the action. The court has already concluded that the complainants have standing, at least in their capacity as administrators of the estate of the cousin to prosecute the action. To that extent, the motion is granted. It is denied with respect to whether the complainants have standing to prosecute the action in their individual capacities.

Nothing is certain in life that is why we must all be prepared. If you want to contest a court judgment on will related dispute, call the Nassau County Will Contest Lawyer together with the Nassau County Probate Attorney. You can also consult the Nassau County Estate Attorney from Stephen Bilkis and Associates for you probate representation.

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