Opinion
2012-12-24
George WILLIAMS, Plaintiff, v. Darren WILLIAMS and Jacqueline Williams, Defendants.
The Law Office of Rene Myatt, by Rene Myatt, Esq., Jamaica, for the Plaintiff. Dennis S. Cappello, Esq., Elmhurst, The Referee.
The Law Office of Rene Myatt, by Rene Myatt, Esq., Jamaica, for the Plaintiff. Dennis S. Cappello, Esq., Elmhurst, The Referee.
CHARLES J. MARKEY, J.
Papers Numbered and Read:
+-----------------------------------------------------------------------------+ ¦Oath and Report of Referee Dennis S. Cappello, Esq., dated December 14, ¦1 ¦ ¦2012 ¦ ¦ +-------------------------------------------------------------------------+---¦ ¦This Court's prior orders dated April 11, 2011, and September 8, 2011 ¦2–3¦ +-----------------------------------------------------------------------------+
The Court is rendering this decision, sua sponte, based on Oath and Report of Referee Dennis S. Cappello, Esq., dated December 14, 2012, concerning the rights and duties of the litigants to real property located in Queens County, New York. By order dated September 8, 2011, the undersigned named Mr. Cappello as a referee to make findings and recommendations to this Court. Mr. Cappello is a well-respected lawyer and certified public accountant, who is also an expert in real property law and partition actions.
In a summons and complaint dated March 8, 2010, and filed with the County Clerk on that date, plaintiff George Williams commenced an action against defendants Darren Williams and Jacqueline Williams to determine the rights, interests, and duties of the parties to a parcel of real property located in Queens County, New York, and/or for damages. The parties are the children of Alice Williams, who died intestate on November 16, 1999.
By decision dated April 11, 2011, and entered by the Clerk on April 19, 2011, the undersigned granted a default judgment against defendant Darren Williams. Rene Myatt, Esq., counsel for plaintiff George Williams, reached a settlement with the co-defendant Jacqueline Williams, in a signed stipulation of settlement, sworn to on August 12, 2011. Jacqueline Williams, in that agreement, waived the right to file an answer and agreed to sign an Executor's Deed to the property.
The Court has read the report, findings, and recommendations of Mr. Cappello. Mr. Cappello undertook a difficult task in developing the findings and conclusions contained in his report, requiring a great deal of investigation, interviews of co-operating parties, legal research, and extensive research into comparable real estate values.
Mr. Cappello, as referee, also conducted his own search of the real property records of the New York City Department of Finance Office of the City Register, Automated City Register Information System (“ACRIS”).
The Court adopts the report of Mr. Cappello and the recommendations, findings, and conclusions contained therein. This Court specifically approves of each of Mr. Cappello's findings and conclusions. Mr. Cappello, in relevant part, states:
7. I find as follows with respect to the rights, interests and duties of all parties in this action concerning the Property:
(a) Alice Williams died a resident of Queens County on November 16, 1999 seized and possessed in fee simple absolute of the real property that is the subject of this action.
(b) Alice Williams died intestate and left surviving her three (3) persons who inherit her estate by the rules governing intestate succession pursuant to EPTL § 4–1.1, those persons being her children, all of whom are parties to this action:
(1) her son George Williams (plaintiff);
(2) her son Darren Williams (co-defendant); and
(3) her daughter Jacqueline Williams (co-defendant).
(c) Plaintiff and co-defendants are the lawful heirs and distributees of the decedent Alice Williams entitled to distribution of the decedent's property and estate in equal shares pursuant to EPTL § 4–1.1(a)(3).
(d) As the lawful heirs and distributees of the decedent Alice Williams, plaintiff and co-defendants share equally in the real property that is the subject of this action, each inheriting a one-third (1/3) undivided share and interest as tenants-in-common.
8. I find as follows with respect to whether there is any creditor not a party to this action who has a lien on the undivided share or interest of any of the parties to this action (RPAPL § 913):
(a) There are two (2) creditors whose loans to the decedent Alice Williams during her lifetime were secured by mortgages made by decedent and said mortgages of record remain open against the premises:
(1) Mortgage made to The Greenpoint Savings Bank in the amount of forty-five thousand dollars ($45,000.00) dated 12/09/1985 recorded 1/16/1986 in Reel 2007 Page 1150; and
(2) Mortgage made to The Chase Manhattan Bank, N.A. in the amount of seventy thousand dollars ($70,000.00) dated 09/21/1993 recorded 10/12/1993 in Reel 3680 Page 1096, said Mortgage subsequently assigned to Dovenmuehle Mortgage Company LP dated 08/16/1994 recorded 05/01/1995 in Reel 4116 Page 2496.
(b) There are no liens filed against the premises with the Queens County Clerk's Office.
9. I find as follows with respect to the partition of the premises:
(a) The premises is a parcel of land measuring 3,850 square feet in area, rectangular in shape (38.50 feet by 100.00 feet) and improved by a one (1) family residential dwelling 1,050 square feet in area (25.00 feet by 42.00 feet).
(b) The partition of the premises would require a division of the existing parcel into three (3) distinct parcels measuring 1,283.33 square feet.
(c) Partition of the premises cannot be made without great prejudice to the owners thereof; such a partition would materially reduce the value of the entire premises leaving each individual owner with a small parcel of land whose value would be substantially less than if the one (1) undivided parcel of land were sold and the proceeds distributed evenly to each owner.
10. I note that the Surrogate's Court of the County of Queens has jurisdiction of this matter and appointed defendant Jacqueline Williams as Administrator of the estate more than twelve (12) years ago (January 20, 2000 to the present date).
11. An extraordinary amount of time has elapsed since defendant Jacqueline Williams was appointed to administer the estate, there has been no resolution to date as to how to distribute the premises to the parties as beneficiaries of the estate and it appears there will be no such resolution in the foreseeable future; given this situation as it presently stands, the best possible solution for all parties is to:
(a) liquidate the estate by selling the premises as one (1) undivided parcel;
(b) satisfy the valid claims of all creditors not a party to this action who have a lien on the premises; and
(c) distribute the proceeds remaining in three (3) equal shares to the beneficiaries of the estate.
12. I recommend that this Court refer the plaintiff George Williams to the Surrogate's Court of the County of Queens and direct plaintiff to petition the Surrogate's Court to remove defendant Jacqueline Williams from her position as Administrator and appoint plaintiff Administrator de bonis non (SCPA § 1007); assuming the petition is granted, plaintiff should then petition the Surrogate's Court:
(a) to authorize or direct the disposition by sale of the real property (SCPA § 1904);
(b) for an order directing that the net proceeds of the sale of the premises be divided into three (3) equal shares and distributed to the beneficiaries of the estate; and
(c) for an Order of Eviction against the defendant Darren Williams in the event said defendant Darren Williams fails to vacate the premises.
The Court specifically adopts each of the findings of the Referee quoted above, as though made by the undersigned.
The Court also adopts the conclusions of Mr. Cappello as to the appropriate relief. Specifically, this Court transfers this action to the Surrogate's Court, Queens County.
This Court directs plaintiff George Williams to petition the Surrogate's Court to remove defendant Jacqueline Williams from her position as Administrator and appoint plaintiff Administrator de bonis non (SCPA § 1007). For examples of the appointments of an administrator de bonis non, see In re Ginzburg, 89 A.D.3d 938, 932 N.Y.S.2d 534 [2nd Dept.2011] and Real Spec Ventures, LLC v. Estate of Deans, 87 A.D.3d 1000, 929 N.Y.S.2d 615 [2nd Dept.2011].
Assuming that such a petition by George Williams seeking the removal of Jacqueline Williams as Administrator is granted by the Surrogate of Queens County, George Williams should also request from the Surrogate's Court:
(a) an order authorizing and directing the disposition by sale of the entire real property (SCPA § 1904). The Court agrees with the referee that the idea of relief of partition of the property is misplaced and not in the best interests of the litigants;
(b) an order directing that the net proceeds of the sale of the premises be divided into three (3) equal shares and distributed to the beneficiaries of the estate; and
(c) an Order of Eviction against the defendant Darren Williams in the event said defendant Darren Williams fails to vacate the premises.
The Court specifically adopts each of the findings, recommendations, and conclusions of the Referee, quoted above, as though made by the undersigned. In sum, the Court adopts the conclusions of Mr. Cappello as to the findings and appropriate relief. Specifically, this Court transfers this action to the Surrogate's Court, Queens County ( see, e.g., In re Guarraci, 100 A.D.3d 633, 953 N.Y.S.2d 284 [2nd Dept.2012]; In re Neustein, 97 A.D.3d 684, 948 N.Y.S.2d 644 [2nd Dept.2012]; accord, Sitler v. Saratoga Associates Landscape Architects, 101 A.D.3d 1451, 2012 WL 6621138, 2012 N.Y. Slip Op. 08865 [3rd Dept.2012] ).
After the Clerk of the Supreme Court, Queens County, has transferred the papers of this action to the Clerk of the Surrogate's Court, Queens County, the plaintiff herein, George Williams, shall petition the Surrogate's Court, Queens County, for the relief set forth above.
The Court also commends referee Dennis S. Cappello for his modest count of the time involved. It is abundantly clear to the Court that Mr. Cappello did not let “the meter run,” by allowing a lot of time to run so as to overbill the litigants. Instead, Mr. Cappello's factual and legal inquiries and investigations went right to the heart of the matter.
In light of Mr. Cappello's experience in the real property field and as a certified public accountant, he saved the plaintiff and the litigants a great deal of money by recognizing that the remedy of partition would only eviscerate the ultimate price that the real property would command at the marketplace if the real property were to be divided by partition.
The Court awards Mr. Cappello the sum of $500 per hour with an additional $500 for his out-of-pocket expenses. Mr. Cappello alleges the modest sum of 10 hours of work. The Court thus awards Mr. Cappello the sum of $5,000.00 in fees [$500 x 10 = $5,000.00] and another $500.00 for expenses, for a total of $5,500.00.
Upon consideration and reflection, the ultimate benefactor is the plaintiff. The plaintiff shall pay the sum of $5,500.00 to Mr. Cappello within 20 days of the service upon plaintiff of a copy of this Order that bears the dated stamp of its entry by the County Clerk.
Any party or Mr. Cappello shall serve such notice of entry with the date stamped copy of this Order upon all parties, including both defendants, and upon the Clerk of this Court, and upon the Clerk of the Surrogate's Court, Queens County.
The foregoing constitutes the decision, opinion, and order of the Court.