Opinion
December 28, 1998
Appeal from the Surrogate's Court, Queens County (Nahman, S.).
Ordered that the decree is modified by (1) deleting the second decretal paragraph thereof and substituting therefor a provision directing the petitioner to pay to the estate the total proceeds from the sale of 167-171 Beach 95th Street, and one-half the proceeds from the sale of 172 Beach 96th Street, in the total principal sum of $172,500, (2) deleting the third decretal paragraph thereof, representing the mortgage interest on those properties, and (3) deleting the twelfth decretal paragraph; as so modified, the decree is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Surrogate's Court, Queens County, for the calculation of the interest, including the mortgage interest on $172,500, and the entry of an appropriate amended decree.
The record supports the Referee's determination that the decedent was a 50% owner of Beach Plaza Properties, Inc. (hereinafter Beach Plaza), and its successor, WEBNY Corp. Accordingly, we decline "to disturb so much of the decree as directed the petitioner to turn over one-half of the proceeds from the sale of the four parcels of real property owned by Beach Plaza and WEBNY Corp. ( see, Hunt v. Hunt, 222 A.D.2d 759, 760; Matter of C M Plastics, 194 A.D.2d 1020, 1022; Matter of Benincasa v. Garrubbo, 141 A.D.2d 636, 638; Matter of Rappaport [Jileen Sec. Corp.], 110 A.D.2d 639, 641).
It is undisputed that the petitioner and the decedent owned the real property located at 172 Beach 96th Street as joint tenants at the time it was sold for $75,000, in the form of $8,500 cash and a purchase money mortgage in the amount of $66,500. While the petitioner is entitled to half of the proceeds, the remaining half should be paid to the estate ( see, EPTL 6-2.2; Matter of Blumenthal, 236 N.Y. 448). In light of our determination, the matter must be remitted for calculation of the mortgage interest due, and the entry of an appropriate amended decree.
The petitioner's remaining contentions are without merit.
Bracken, J. P., Copertino, Goldstein and McGinity, JJ., concur.