Fire Burglary Instruments, Inc. v. Piccione

85 A.D.2d 594, 444 N.Y.S.2d 707, 1981 N.Y. App. Div. LEXIS 16398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1981
• Status: Published

Opinion

In an action to recover damages for malicious prosecution and abuse of process, plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated March 20, 1981, as granted defendants’ motion to remove the action to the Surrogate’s Court, Nassau County. Order reversed insofar as appealed from, without costs or disbursements, and motion denied. The caption of the action is amended to reflect that defendants are being sued in their individual capacities. The plaintiffs brought this action in response to various attempts by defendants to evict them as holdover tenants from a building owned by the estate of which defendants are coexecutors. Amongst the attempts was a summary proceeding brought in the Surrogate’s Court, Nassau County. The instant action must be brought against the coexecutors in their individual capacities, and we deem the caption of this action amended accordingly (see Kirchner v Muller, 280 NY 23, 28, 30). Special Term erred in holding that this action was cognizable in the Surrogate’s Court because it related to the affairs of the decedent (see NY Const, art VI, § 12, subds d, e; SCPA 201, subd 3). This action is an independent matter involving living persons and is, therefore, outside the limited jurisdiction conferred by statute upon the Surrogate’s Court (see Matter of Lainez, 79 AD2d 78, 79, 80, affd 55 NY2d 657). Damiani, J. P., Mangano, Weinstein and Thompson, JJ., concur.