A New York Probate Lawyer said this is a Supreme Court partition action commenced by the decedent’s surviving spouse, during the pendency of a probate or will contest proceeding in this court seeking, inter alia, a declaration that the decedent’s interest in certain real property passed to him by operation of law at her death was dismissed by the Supreme Court on the grounds that the real property at issue was devised in the decedent’s propounded will in a different manner and that the dismissal was without prejudice as this court was the appropriate forum to determine the respective ownership claims to the realty. It is apparent that the disputed interest in realty is the only potential asset of the testamentary estate, so if the spouse is successful, there is no practical reason to proceed to probate the propounded instrument.
A New York Will Lawyer said pursuant to CPLR 3212, the spouse now moves for summary judgment seeking a declaration that the decedent’s interest in premises 2426 St. Raymond Avenue, Bronx, New York, passed to him by operation of law pursuant to a deed dated January 30, 1995. The deed lists the grantees as A, B C and D. C is the decedent’s sister. In the propounded will the decedent purports to devise her half share and interest in the real property located and known as 2426 St. Raymond Avenue to the decedent’s sister and the decedent’s spouse, D, in equal shares. The co-tenants of the realty, C and D, and the nominated executor oppose the application. They contend that the decedent’s interest in the premises is held as a tenant in common and passes under the will. Consequently, they assert that one-eighth of the property passes under the will to the decedent’s sister and one-eighth to the decedent’s spouse.
On 16 December 2000, the decedent died. She was survived by her spouse, B, as her sole distributee. A Staten Island Probate Lawyer said the amended probate or will contest petition lists the realty as the only testamentary asset. It appears that unless the decedent’s interest under the deed was a one-quarter tenant in common interest, the decedent left nothing that passes under the will.
The spouse claims pursuant to the wording of the deed that he and the decedent owned an undivided 50% interest in the premises as tenants by the entirety. Therefore, upon her death he became the owner of an undivided 50% share of the premises by operation of law. The spouse argues that a grant of real property to a husband and wife creates a tenancy by the entirety, unless expressly declared to be a joint tenancy or tenancy in common in accordance with EPTL § 6-2.2 [b] and that a tenancy by the entirety cannot be altered without the mutual consent of the spouses or a divorce and that the provisions of a will cannot vary the transfer of ownership that occurs by operation of law.
In opposition the respondents contend that on 30 January 1995 the premises was purchased by the decedent, her sister C, and their respective husbands, with the intent to hold title as tenants in common. They contend that the deed does not contain language of joint ownership or survivorship. In executing her will devising her share of the premises equally to her husband B and C, the decedent reflected the intent to hold as tenants in common. C contends that she provided all of the consideration for the down payment and paid all the closing costs at the time of purchase in the approximate sum of $27,000.00. C also paid for all renovations to the property in the estimated amount of $7,000.00. They contend that since the language in the deed is ambiguous, the court should reconcile the inconsistency in light of the will and the surrounding circumstances. Lastly, respondents contend that the court should find that the movant has a 3/8 interest in the realty, 1/4 as tenant in common under the deed and 1/8 under the will less the aforementioned sums contributed by C in the purchase and renovation of the realty.
It was held in Phillips v Joseph Kantor & Co. that summary judgment cannot be granted unless it clearly appears that no material issues of fact exist. It is the movant who must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact as held in Alvarez v Prospect Hosp. and Friends of Animals, Inc. v Associated Fur Mfrs. Inc. Queens Probate Attorneys said when the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact as in Zuckerman v City of New York. Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial based on Glick & Dolleck, Inc. v Tri-Pac Export Corp. The papers submitted in the summary judgment application are scrutinized in a light most favorable to the party opposing the motion as was also held in F. Garofalo Elec. Co. v New York Univ.
The court finds that, contrary to the respondents’ argument, the deed is not ambiguous on its face. Pursuant to EPTL 6-2.2 (b), a disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common akin to the case of Bartholomew v Marshall and in accordance with Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 6-2.2.
In the case at bar, the subject deed had no express declaration indicating anything other than a conveyance to the decedent and her husband of one-half of the realty as tenants by the entirety. Tenancies by the entirety is different from both tenancies in common and a joint tenancy in that it remains fixed and cannot be destroyed without the consent of both parties for as long as the marriage remains legally intact, with both parties continuing to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse’s coextensive interest in the property as held in V.R.W., Inc. v Klein. In light of the fact that by operation of law the death of one of the tenants by the entirety results in that tenant no longer having an interest in the property, a severance of a tenancy by the entirety cannot be effectuated by the unilateral last will and testament of one of the spouses alone based on Matter of Strong.
Accordingly, the court grants the motion for summary judgment to the extent B is declared to be the owner of a 50% interest in the subject premises. The issue of the right of the sister to credits for certain payments is not before the court in this motion, and, in any event, there appear to be factual issues with respect to this issue.
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