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Tenant Contends that Petitioner lacks Power to Prosecute Hold-Over Proceeding


This is a holdover Landlord-Tenant summary proceeding. The tenant has moved to dismiss the petition pursuant to RPAPL 721 and 741 asserting that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

This case was originally returnable on September 13, 2012. Attorneys for both sides appeared. Tenant’s attorney asked that the case be dismissed and, upon the Court’s reluctance to do so without a record, requested a motion schedule. The Court set the schedule to require that the motion be filed by September 20 with answering papers due September 23 and set October 4 as a control date. Despite this schedule, tenant made no request for any extension of time and made no motion until filing papers on September 28.

The Legislature created summary proceedings in 1820 in order to give landlords a “simple, expeditious and inexpensive means of regaining possession of a premises in cases where the tenant wrongfully held over without permission after the expiration of his term.” Expeditious disposition is so much of a priority that the statute prohibits adjournment of trials by not more than ten days, except by consent of all parties. RPAPL 745 (1). In keeping with this priority, the Court set a prompt, but viable, schedule for the proposed motion. Tenant failed to file the motion in a timely manner or seek consent to extend the schedule. Accordingly, the motion is denied as untimely.

Nevertheless, the Court also had the opportunity to examine the merits of the motion. Tenant argues that a preliminary executrix lacks standing to bring a holdover summary proceeding on behalf of the estate of the decedent. RPAPL 741 requires that the petition “state the interest of the petitioner in the premises from which removal is sought.” The petition contains an allegation that the “petitioner is Executrix of the Estate of Byron T. Hawkins pursuant to preliminary letters testamentary.” RPAPL 721 lists the persons who may maintain such a proceeding. While a preliminary executrix is not listed in RPAPL 7211 , the landlord is. RPAPL 721. Tenant fails to cite any authority other than the statute for the proposition that a preliminary executor lacks standing to maintain a proceeding under RPAPL 721.

Since the RPAPL is silent on the power of a preliminary executor, other statutes may shed light on the issue. EPTL Art. 11 sets forth the powers of fiduciaries. A fiduciary is a person who meets the description of a “personal representative”. EPTL 1-2.7. A personal representative is a person who has received letters to administer the estate of a decedent. EPTL 1-2.13.

In the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary every fiduciary is authorized: (5) With respect to any property or any estate therein owned by an estate or trust, except where such property or any estate therein is specifically disposed of: (A) To take possession of, collect the rents from and manage the same. EPTL § 11-1.1 (b)(5)(A). The preliminary letters testamentary conferred all power and authority on the petitioner except the power to dispose of property without Court approval.2 Among the powers granted to a fiduciary is to maintain any action, other than an action for injury to person or property, in all cases and in such manner as such action might have been maintained by his decedent. EPTL 11-3.1.

SCPA 1412(3)(a) specifically authorizes a preliminary executor to take possession of, manage and sell any real property devised by the instrument offered for probate, unless the court or the instrument offered for probate directs otherwise.

The case law also supports the right of a preliminary executrix to maintain a summary proceeding. In Cotignola v. Lieber, 34 AD2d 700, 309 NYS2d 498 [3rd Dept 1970], the preliminary executor served a notice to quit upon the occupant of property owned by the decedent at the time of his death The occupant refused to vacate and a summary proceeding was commenced by the preliminary executor. The Court’s refusal to adjourn the case more than ten days was upheld by the Appellate Division. In Will of Henry, 48 Misc 2d 320, 264 NYS2d 715 [Surr Ct, Westchester County 1965], the tenant of property owned by a corporation in which the decedent owned all the shares at the time of decedent’s death, sought to restrain the preliminary executors from evicting them from the building she occupied. The Surrogate’s Court refused to grant the relief sought.

In Matter of Silva, 9/26/2000 NYLJ 31, col. 4 [Surr Ct, Kings County], the Court granted a final judgment of possession of the premises in a non-payment summary proceeding to preliminary executors. In In re Wendel’s Estate, 148 Misc 912, 266 NYS 694 [App Term 1st Dept 1933], temporary administrators were found to be authorized “to maintain any action or proceeding which in their judgment may be advisable in furtherance of their right of possession of the real property of the estate, including a summary proceeding.” There is no reason why the rule for temporary administrators should not be equally applicable to preliminary executors. Accordingly, the petitioner as preliminary executrix has the power to maintain this summary proceeding and the motion is also denied on its merits.

Accordingly, it is, ordered that the Respondent’s motion to dismiss is denied, and it is further ordered that the parties appear ready for trial of this matter at this Court on Monday October 15, 2012 at 2:00 p.m. unless otherwise agreed by the parties after consultation with the Clerk to assure the proposed adjourned date is available for trial.

An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the Rye City Court Clerk’s office. A notice shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. CPLR § 5515. -Pursuant to UCCA § 1701 “Appeals in civil causes shall be taken to” the appellate term of the supreme court, 9th Judicial District. An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs: 1. service by the court of a copy of the judgment appealed from upon the appellant. 2. service by a party of a copy of the judgment appealed from upon the appellant. 3. service by the appellant of a copy of the judgment appealed from upon a party.

Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. UCCA § 1703(b). 1. This is not surprising since the statute lists persons in a relationship to the land or tenant, not their title or status. For instance, neither the owner, an Executor nor an Administrator, nor Trustee in Bankruptcy is listed. 2. This is consistent with EPTL § 11-1.3 that bars an executor named in a will from exercising any power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it.

If you want to designate a specific administrator of your estate, seek the legal representation of Stephen Bilkis and Associates.

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