Opinion
2011-184.
Decided June 22, 2011.
Michael J. Noonan, Esq., for Oneida Vergara, administrator.
The voluntary administrator, one of the decedent's five daughters, seeks an order transferring to this court a landlord/tenant holdover proceeding pending in the Civil Court, Bronx County (L/T Index No. 024459/2011), and to stay the civil court proceeding pending a hearing and determination by this court.
In support of her order to show cause and application, the voluntary administrator claims that she and two other distributees were primary residents of the decedent's cooperative apartment for at least two years prior to the decedent's death, and are entitled to purchase and become successor residents of the apartment pursuant to the terms of a regulatory agreement between the cooperative and The City of New York Department of Housing Preservation and Development. The voluntary administrator claims that the cooperative shares constitute the only asset of the estate and have a value of up to $30,000.
The underlying notice of petition and petition in the landlord/tenant proceeding reveals, inter alia, that the voluntary administrator was served with a notice of termination and notice to quit on March 24, 2011, and the petition was initially returnable on May 19, 2011, but was adjourned on consent to June 23, 2011 to allow the voluntary administrator to file an answer by June 16, 2011. The transfer application was sworn to on June 16, 2011.
Under appropriate circumstances, this court has authority to transfer a matter from the civil court to this court (see SCPA 209; SCPA 501 [a]; Matter of Kresge, 16 Misc 3d 1123 [A], 2007 NY Slip Op 51553 [U] [2007]). Notwithstanding that the petitioner claims that the issues pending in the civil court involve an estate asset, it appears that the rights in and to the cooperative shares and lease are wholly contingent on the primary residency status of the petitioner, individually, and of two of her siblings in the two years prior to the decedent's death. Consequently, the court will not entertain the application, as the landlord/tenant proceeding primarily arises out of the actions of three of the decedent's distributees and involves a controversy between living parties over which this court lacks jurisdiction (see Matter of Deans, 68 AD3d 767; Matter of Wallace, 239 AD2d 14; Matter of Lupoli, 237 AD2d 440; Matter of Lainez, 79 AD2d 78). Furthermore, even assuming, arguendo, that jurisdiction exists in this matter, it would be "an improvident exercise of discretion to transfer . . . [a] garden-variety" summary proceeding to this court (see Sims v Manley, 120 AD2d 405, 406; see also Matter of Delgado, 151 Misc 2d 316).
Accordingly, this decision constitutes the order of the court declining to entertain the order to show cause.