FAMILY EVICTION - IN SURROGATE'S COURT.

An attempt was made to resolve this dispute between the decedent's daughter, her half brother and another sibling distribute. But apparently, court involvement was required.

Estate of Ford

Date filed: 2023-06-13

Court: Surrogate's Court, Bronx

Judge: Surrogate Nelida Malave-Gonzalez

Case Number: 2019-1835/C:

"Kenyahbba T. Ford (the “Petitioner”) is the decedent’s son and the estate’s administrator. He brought this miscellaneous proceeding by order to show cause seeking, inter alia, (i) to eject a daughter of the decedent, Tonja Meyers (“Tonja”), and the decedent’s granddaughter, SheMeiyah Meyers (“Shemeiyah”) (collectively, Tonja and SheMeiyah are the “Respondents”) from the decedent’s home located at 2704 DeWitt Place, Bronx, New York (the “Premises”); and (ii) a money judgment in the sum of $47,600.00 against the Respondents for their use and occupancy of the Premises. The decedent died on July 21, 2019. At the time of her death she was domiciled at the Premises. The decedent was survived by three distributees — the Petitioner, Tonja and another daughter, Niykebba L. Ford, who consents to the relief requested by the Petitioner herein. The estate’s only assets are the Premises and a bank account containing approximately $5,000.00.

The order to show cause commencing this proceeding was returnable on April 27, 2023. According to an affidavit of service filed by the Petitioner, an attorney certified copy of the order and its supporting papers were served upon each Respondent by overnight mail at the Premises on April 17, 2023. Those supporting papers included, inter alia, the petition; a copy of the Premises’ deed showing that the realty was owned by the decedent at the time of her death; and a ten-day “notice to quit” with an affidavit showing its service upon each Respondent.

The petition alleges that the Premises is encumbered with two outstanding mortgages, one of which is in foreclosure. It further asserts that the interests of the estate would be best served by a sale of the Premises so that the mortgages can be satisfied, the estate’s equity in the Premises can be preserved, the estate’s administration and funeral expenses can be paid, and the distributees can receive their respective inheritances. According to the petition, the house needs to be vacant to facilitate a sale.

It is further averred that prior to this proceeding the Petitioner, in his individual capacity, attempted to resolve this matter by offering to buy out Tonja’s interest in the Premises for a fair market value and provide the Respondents with financial assistance to move out. The Respondents, however, allegedly declined the offer and have elected to remain in the Premises since the decedent’s death, without paying use and occupancy.

On the return date of the order to show cause, the Petitioner’s counsel and Tonja appeared on the court’s virtual platform. SheMeiyah did not appear. The court directed that by May 19, 2023 Tonja must either hire an attorney or serve and file her objections, in proper form, and adjourned the matter to May 25, 2023.

Tonja did not hire an attorney or serve and file objections as directed. On May 25, 2023 the Petitioner’s counsel and Tonja again appeared virtually before the court. At that time, Tonja indicated that she would not be obtaining counsel. Tonja also confirmed that only she and SheMeiyah resided at the Premises. The court gave Tonja one more opportunity to serve and file objections, in proper form, and set a deadline of June 2, 2023 for her to do so. The file was then marked “final adjournment” and placed on the court’s June 6, 2023 calendar.

Tonja did not serve and file objections in proper form by the June 2nd cutoff date. On June 6, 2023, the Petitioner’s counsel, the Petitioner and Tonja appeared on the court’s virtual platform. After affording both sides an opportunity to be heard, the matter was marked submitted for a determination.

As an initial matter, the court has subject matter jurisdiction to grant the relief sought in this proceeding as it clearly relates to decedent’s affairs and the estate’s administration (In re Estate of Piccione, 57 NY2d 278 [1982]; NY Const, art VI, §12; SCPA 201, 202). Furthermore, the request for ejectment is appropriate, notwithstanding that Tonja is a distributee. While she is an owner of the Premises, her rights are subject to the rights granted in the Petitioner, as the estate’s administrator, to take immediate possession of the asset so it can be preserved and made productive to those with a beneficial interest therein (Estate of Grad, 2002 NYLJ 1513 [Sur Ct, Suffolk County 2002]).

In contrast, SheMeiyah has no ownership interest in the Premises. She resides there as a licensee. While courts have been split as to whether a predicate notice of termination is required in an ejectment action, here the Petitioner served SheMeiyah with a ten-day notice terminating her license (see Fazio v. Kelly, 2003 NYLJ LEXIS 1706 [Civil Court, Richmond County 2003]; RPAPL 713[7]). Further, this court has sufficient general equitable jurisdiction to grant the relief sought against SheMeiyah (Matter of Burstein, 153 Misc. 515, 519 [Sur Ct, Kings County 1934]; In re Estate of Piccione, 57 NY2d 278 [1982]).

To date, neither Respondent has filed objections, nor have they requested leave for additional time to file objections in proper form. In the absence of any filed objections, the petition is due proof of the facts stated therein (SCPA 509). Moreover, it appears to the court that it is in the distributees’ best interests to have the Premises promptly sold so they can preserve their equity in the realty, pay administrative expenses, and receive their distributive shares of the net estate. As the Respondents continued occupation of the Premises would prevent the expeditious sale of the Premises, to the estate’s detriment, the Petitioner’s request for an ejectment order is granted.

Accordingly, it is hereby ordered that the Petitioner, as the administrator of the estate of Evelyn Ford, also known as Evelyn Meyers Ford, recover possession of the Premises from the Respondents. A copy of this order shall be transcribed and docketed in the Bronx County Clerk’s office. On a date that is no earlier than sixty days from the date hereof a sheriff or marshal of the County of Bronx, upon receipt of a certified copy of this order and its transcript, shall enter upon the Premises and eject the Respondents therefrom and put the Petitioner into possession of the Premises, and this order shall be executed by said sheriff or marshal as if it were an execution for delivering possession of the Premises.

The Petitioner’s application for a money judgment against the Respondents, however, is denied without prejudice. On this state of the record, the court is not satisfied that the Petitioner has established the amount, if any, of the fair use and occupancy owed to the estate by the Respondents. Furthermore, such relief should be sought in an accounting proceeding brought after the realty is sold, not at this juncture. Therefore, the court directs the Petitioner to file an account and a petition for its judicial settlement, and cause a citation to issue thereon, within thirty days after the Premises’ sale."