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Manning v. Thorne

Appellate Division of the Supreme Court of New York, Second Department
May 25, 2010
73 A.D.3d 1136 (N.Y. App. Div. 2010)

Opinion

No. 2009-05745.

May 25, 2010.

In an action for the partition and sale of real property, the defendant Isa Muhammad appeals from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 8, 2008, which granted the plaintiffs motion for the sale of the subject property and the division of the proceeds thereof, and directed the parties to consent to the sale of the subject property to a prospective buyer or, if they failed to consent, to the partition and public sale of the subject property.

John S. James, New York, N.Y., for appellant.

James L. Franklin, New York, N.Y., for respondent.

Before: Dillon, J.P., Miller, Dickerson and Chambers, JJ.


Ordered that the order is affirmed, with costs.

"[T]he Supreme Court and the Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate" ( Gaentner v Benkovich, 18 AD3d 424, 427). "[A]s a general rule, 'in courts of concurrent jurisdiction of a particular subject matter the court first assuming jurisdiction should retain the action'"( id. at 428, quoting Zeglen v Zeglen, 150 AD2d 924, 925). Contrary to the appellant's contention, the Supreme Court acted properly in deciding the appellant's motion instead of transferring it to the Surrogate's Court ( see McGirr v Keesler, 273 App Div 778; Brandt v Stowe, 20 Misc 2d 856, 858; see also Ruiz v "Ruiz", 262 AD2d 392). Moreover, the appellant never moved to transfer the action to the Surrogate's Court ( see CPLR 325 [e]; Gaentner v Benkovich, 18 AD3d at 428).

Contrary to the appellant's contention, the Supreme Court properly granted the plaintiffs motion. The plaintiffs motion was supported by one having personal knowledge of the relevant facts regarding the appellant's eviction from the subject property ( see Comptroller of State of N.Y. v Gards Realty Corp., 68 AD2d 186, 188-188; see also Parametric Capital Mgt., LLC v Lacher, 33 AD3d 376; Davidowitz v Dixie Assoc., 59 AD2d 659).

The appellant's remaining contentions are without merit.


Summaries of

Manning v. Thorne

Appellate Division of the Supreme Court of New York, Second Department
May 25, 2010
73 A.D.3d 1136 (N.Y. App. Div. 2010)
Case details for

Manning v. Thorne

Case Details

Full title:JOAN THORNE MANNING, Respondent, v. PAMELA THORNE et al., Defendants, and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 25, 2010

Citations

73 A.D.3d 1136 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 4554
900 N.Y.S.2d 900

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