Estate of Hershkowitz v. Walker

Appellate Terms of the Supreme Court of New York

Estate of Hershkowitz v. Walker

192 Misc. 2d 340, 746 N.Y.S.2d 228, 2002 N.Y. Misc. LEXIS 1009

Appellate Terms of the Supreme Court of New York·Decided May 17, 2002·Published

Opinion

[341]*341OPINION OF THE COURT

Memorandum.

Order unanimously reversed with $10 costs, and motion to vacate the default judgment, dismiss the petition and restore tenant to possession granted.

The petitioner, an estate of a decedent who was a Florida domiciliary, commenced the instant holdover proceeding to recover possession of a cooperative apartment located within Kings County, New York. While the estate’s personal representatives were apparently duly appointed by a Florida court having jurisdiction over the estate, the estate’s personal representatives apparently did not obtain ancillary letters from New York appointing them as ancillary fiduciaries (see, SCPA 206 [1]; 1602 [1]; 1607, 1610 [1]). Inasmuch as an estate is not a legal entity, and any action by an estate must be by an executor or administrator in his representative capacity (Estate of Fenton v Rich, NYLJ, Apr. 2, 2001, at 34, col 6 [App Term, 2d & 11th Jud Dists]; 100 W. 72nd St. Assoc. v Murphy, 144 Misc 2d 1036; see, EPTL 11-3.1) and this proceeding was not brought by an executor or administrator duly authorized to act within New York, and none has been made a party, tenant’s motion to vacate the default judgment, dismiss the petition and restore her to possession should have been granted.

Patterson, J.P., Golia and Rios, JJ., concur.

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[341]*341OPINION OF THE COURT

Memorandum.

Order unanimously reversed with $10 costs, and motion to vacate the default judgment, dismiss the petition and restore tenant to possession granted.

The petitioner, an estate of a decedent who was a Florida domiciliary, commenced the instant holdover proceeding to recover possession of a cooperative apartment located within Kings County, New York. While the estate’s personal representatives were apparently duly appointed by a Florida court having jurisdiction over the estate, the estate’s personal representatives apparently did not obtain ancillary letters from New York appointing them as ancillary fiduciaries (see, SCPA 206 [1]; 1602 [1]; 1607, 1610 [1]). Inasmuch as an estate is not a legal entity, and any action by an estate must be by an executor or administrator in his representative capacity (Estate of Fenton v Rich, NYLJ, Apr. 2, 2001, at 34, col 6 [App Term, 2d & 11th Jud Dists]; 100 W. 72nd St. Assoc. v Murphy, 144 Misc 2d 1036; see, EPTL 11-3.1) and this proceeding was not brought by an executor or administrator duly authorized to act within New York, and none has been made a party, tenant’s motion to vacate the default judgment, dismiss the petition and restore her to possession should have been granted.

Patterson, J.P., Golia and Rios, JJ., concur.

Estate of Hershkowitz v. Walker, 192 Misc. 2d 340, 746 N.Y.S.2d 228, 2002 N.Y. Misc. LEXIS 1009 (N.Y. Ct. App. 2002).

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192 Misc. 2d 340 (Estate of Hershkowitz v. Walker) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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