Opinion
Index No. 32242/2018E
09-23-2024
The Parkchester South Condominium, Inc. on behalf of the unit owners of the Parkchester South Condominium, Plaintiff(s), v. Emilio Delgado, et al., Defendant(s).
Unpublished Opinion
Hon. Ashlee Crawford, A.J.S.C.
Notice of Motion - Exhibits and Affidavits Annexed NYSCEF No(s). 76-87
Opposition to Motion - Affidavit and Exhibits NYSCEF No(s). 88-93
Notice of Cross-Motion - Affidavit and Exhibits NYSCEF No(s). 94-105
Opposition to Cross-Motion - Affidavit and Exhibits NYSCEF No(s). 106-111
Reply to Cross-Motion - Affidavit and Exhibits NYSCEF No(s). 112-115
Upon the foregoing papers, and due deliberation being held, the Court finds as follows:
This action was brought to foreclose a condominium common charge lien against the premises located at 99 Metropolitan Oval, Apt. 5G, Bronx, New York (Block 3937, Lot 3962). The owner of record was decedent Emilio Delgado, who died intestate on January 27, 2016, and whose estate is a named defendant. Also named as a defendant is the Bronx County Public Administrator, to which letters of administration were issued on January 29, 2020. By order dated November 26, 2018, the Court appointed a guardian ad litem on behalf of the unknown heirs of the estate, and service was made by publication in December 2018 (NYSCEF Doc. Nos. 14, 23-24, 97).
The premises was sold at a foreclosure sale on February 10, 2020, resulting in a surplus of $172,013.34, which has been deposited with the City Department of Finance (see Report of Sale, NYSCEF Doc. No. 65, 102). Two claims to the surplus have been filed: one by the Public Administrator, and the other by non-party Sonia Delgado ("Delgado"), individually and in her capacity as purported heir-at-law to the estate (NYSCEF Doc. No. 69, 74).
Now, Delgado moves pursuant to RPAPL §§1355 and 1361 to confirm the referee's report of sale and for the distribution of the surplus funds to herself. The Public Administrator opposes that part of Delgado's motion directed to the surplus funds, and cross-moves to confirm the referee's report of sale and for the distribution of the surplus funds to the Public Administrator as the fiduciary of the estate.
In support of her motion and in opposition to the cross-motion, Delgado submits attorney affirmations asserting that she is decedent's "sole daughter" and an heir-at-law to the estate (NYSCEF Doc. No. 77, 106). Delgado also submits her birth certificate and a copy of her application for letters of administration filed in Bronx Surrogate's Court on January 2, 2020; missing is any sworn statement from Delgado (NYSCEF Doc. No. 107-108).
The Public Administrator argues that the surplus funds are assets of, and collectible only by, the estate. Since it is the duly-appointed administrator of the estate, it maintains that Delgado lacks standing to receive estate assets. Moreover, insofar as Delgado asserts her claim in her individual capacity, the Public Administrator argues that she has no such individual right to estate property. It urges the Court to deposit the surplus funds with it, for determination of how to dispense with estate assets following an appropriate proceeding in Surrogate's Court, upon notice to all interested parties, including alleged heirs. Further, the Public Administrator argues that a proceeding in Surrogate's Court would allow for the hearing of all claims by creditors and heirs; the establishment of kinship and a right to inherit from the estate; and the appointment of a guardian ad litem to identify and protect the interests of any unknown heirs and heirs whose whereabouts are unknown. The Public Administrator further challenges Delgado's claim to the surplus funds because it does not deal with the estate's creditors, as required pursuant to SCPA § 1811 and EPTL § 4-1.1. Here, there is a creditor claim of $499,139.56 by the NYC Department of Social Services for which Delgado does not account. Lastly, the Public Administrator stresses that as the fiduciary of the estate, it is entitled to statutory fees which constitute a claim against the estate, and that those fees, together with attorneys' fees, can only be reimbursed through the Public Administrator's possession of the surplus funds (NYSCEF Doc. No. 88-89, 92, 96, 112).
Delgado has not met her burden to receive the surplus funds for the reasons argued by the Public Administrator: she has not proved she is an heir to Emilio Delgado entitled to inherit from his estate; or that other heirs so-entitled do not exist; or that any other potential heirs have been notified; or that there are no other claims to the estate assets. Accordingly, it is hereby
ORDERED that the motion by Sonia Delgado to confirm the referee's report of sale and for the distribution of the surplus funds to herself is GRANTED only to the extent that the referee's report is confirmed, and the motion is otherwise DENIED; and it is further
ORDERED that the cross-motion by the Bronx Public Administrator to confirm the referee's report of sale and for the distribution of the surplus funds to the Public Administrator as the fiduciary of the estate of Emilio Delgado is GRANTED; and it is further
ORDERED that upon service of a certified copy of this order with notice of entry, the Commissioner of Finance of the City of New York, having possession of the subject surplus funds, is directed to distribute the surplus funds as follows:
FIRST: to the New York City Commissioner of Finance, the usual and customary fees incurred in connection with this surplus money proceeding; and
SECOND: to the Bronx Public Administrator, in its capacity as the fiduciary of the estate of Emilio Delgado, the owner of the equity of redemption, the remaining balance of said surplus monies; and it is further
ORDERED that this action is hereby removed from this Court and transferred to the Surrogate's Court, Bronx County; and it is further
ORDERED that the Clerk of this Court is directed to transfer the papers on file in this proceeding to the Clerk of the Surrogate's Court, Bronx County, upon service of this order and payment of appropriate fees, if any, and the filing of the appropriate e-filing forms; and it is further
ORDERED that the Clerk of this Court shall set this matter down for a control date (no appearance by the parties is required) on December 13, 2024.
This constitutes the decision and order of the Court.