In re Xenos, 2022-50241

CourtNew York Surrogate Court
Writing for the CourtPeter J. Kelly, J.
PartiesIn the Matter of the Estate of Constantino Xenos, a/k/a DINO XENOS, Deceased.
Decision Date17 March 2022
Docket Number2022-50241,2020-4760/B

In the Matter of the Estate of Constantino Xenos, a/k/a DINO XENOS, Deceased.

No. 2022-50241

No. 2020-4760/B

Surrogate's Court, Queens County

March 17, 2022


Unpublished Opinion

Ronald Fatoullah & Associates Jordan Lipka, Esq.

Peter J. Kelly, J.

Before the Court is a petition seeking court authorization for the sale of real property.

As background, the decedent passed away on April 19, 2012, leaving a last will and testament dated February 27, 2012. The instrument, inter alia, devises the decedent's one-half interest in the real property known as 20-61 28th Street, Astoria, New York to the decedent's son, Dino Xenos. The other one-half interest is owned by petitioner.

Curiously, it was not until December of 2020 that the petitioner offered the decedent's last will and testament for probate. Petitioner explained that she delayed probating the instrument because decedent's son did not want the real property to be titled in his name or sold. Letters testamentary were issued to the petitioner on October 7, 2021. Despite her fiduciary status, petitioner alleges "upon information and belief" that all of decedent's property, other than the subject real property, was distributed.

It appears that the within proceeding-which was apparently prompted by the initiation of a partition proceeding in the Supreme Court-seeks court "authorization" to sell the decedent's one-half interest in the real property for the purpose of "paying estate debts and expenses." This is a red herring.

The "debts and expenses" referred to by petitioner are neither expenses associated with the estate's administration nor debts of the decedent as contemplated by SCPA 1902. Rather, the expenses are the carrying costs associated with the ownership of the real property and legal fees occasioned solely by an arrangement that was entered into between the two co-owners of the real property, both of whom are living. That arrangement, which carried on for nearly 10 years subsequent to decedent's death, has apparently gone sour.

As this matter clearly represents a dispute among living persons, the essence of which is the amount of money owed to the petitioner by the co-owner of the property, the petition is denied entertainment (see e.g., Estate of Lainez, 79 A.D.2d 78 [2d Dept 1981] aff'd 55 N.Y.2d 657; Estate of Dicosimo, 180 Misc.2d 89 [Sur Ct., Bronx County 1999]. The parties may seek redress by way of the partition action that is pending in the Supreme Court....

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