In the Matter of Marcucilli-Stuart, 2008 NY Slip Op 50770(U) (N.Y. Surr. Ct. 3/26/2008), 327294.
| Decision Date | 26 March 2008 |
| Docket Number | 327294. |
| Citation | 2008 NY Slip Op 50770 |
| Parties | IN THE MATTER OF THE ACCOUNT BY KRISTINE M. SCHROEDER as the Executrix of THE ESTATE OF LILLIAN MARCUCILLI-STUART A/K/A LILLIAN A. MARCUCILLI, Deceased. |
| Court | New York Surrogate Court |
For Petitioner, Kristine Schroeder, Levy & Schneps, P.C., Manhasset, NY.
For Objectants, Erwin Stuart and Sanford Stuart, Connors and Sullivan, P.C., Brooklyn, NY.
In this accounting proceeding, the petitioner Kristine M. Schroeder has moved for partial summary judgment seeking a declaration that the parties' shares of the net proceeds of the sale of the decedent's residence located at 13 Clearwater Avenue, Massapequa, New York ("the Residence") is to be determined by the respective contributions of the decedent and the objectant, Erwin Stuart, toward the purchase price of the residence. For the reasons that follow, the motion is granted.
The decedent, Lilian Marcucilli-Stuart, died on January 29, 2003, survived by her husband, Erwin Stuart, and her daughter, Kristine M. Schroeder. Letters testamentary issued to Kristine on April 22, 2003. Kristine is the residuary beneficiary under the decedent's will. The decedent's spouse, by his attorney-in-fact, filed a petition for a determination of the validity and effect of the exercise of his right of election.
Petitioner has filed an account of her proceedings which asks that the surviving spouse's elective share of the estate be determined and that the respective property rights in the Residence be determined. The Residence was the subject of a partition action in the Supreme Court, Nassau County, Index No. 5890/04, which has been consolidated with this proceeding.
Schedule J of the accounting sets forth the property rights in the Residence of 77.4% to the petitioner and 22.6% to Erwin Stuart and his son, Sanford Stuart. Erwin has filed objections to the account, including an objection to the percentages set forth in Schedule J.
The Residence was purchased by the decedent and Erwin on July 2, 1992, prior to their marriage. They took title as joint tenants with right of survivorship. The purchase price of the residence was $305,000.00. Petitioner claims that the decedent sold her personal residence located at 31 Massapequa Avenue, Massapequa, New York, for $262,250.00, of which the decedent used $236,160.37 towards the purchase price of the Residence, constituting 77.4% of the $305,000.00 purchase price. By deed dated November 30, 1999, the decedent then transferred her entire interest in and to the Residence to Kristine and retained a life estate for herself. Similarly, by deed dated April 16, 2002, Erwin transferred his entire interest in and to the Residence to his son, Sanford, likewise retaining a life estate for himself. The Residence was sold on August 18, 2005 with the net proceeds of sale being $609,548.60.
The objectant argues that the instant motion is procedurally insufficient because it is supported only by counsel's affidavit and not by an affidavit of a person having knowledge of the facts. Objectant also claims that the petitioner's theory of equitable distribution of the proceeds of sale is applicable only in matrimonial actions and is inapplicable to an estate. According to objectant, the petitioner has failed to provide any precedent for applying the theory of equitable distribution to a surviving spouse or any proof that such an arrangement was intended by him and the decedent. Additionally, objectant contends that the petitioner has failed to provide any information regarding the contributions of the parties other than the initial investment. According to objectant's counsel, the objectant contributed approximately $400,000.00 for expenses necessary to the maintenance of the Residence.
Petitioner's counsel has submitted a reply affirmation wherein he argues that objectant has failed to show how the factual distinctions in the matrimonial cases applying the concept of contribution somehow compel a different result in the instant case. Morevoer, counsel claims that, according to the case law, the only factors to be taken into account are the respective initial contributions of the parties and improvements made. Petitioner argues that carrying expenses, such as electric bills, oil bills and water bills, represent living expenses and are not to be factored into the formula.
The sole issue before the court on this motion is how the proceeds of sale from the Residence should be distributed.
The Residence was purchased by the decedent and the objectant at a time prior to their marriage as joint tenants with right of survivorship. After the purchase, the decedent and objectant were married. The marriage of the parties, however, did not convert the joint tenancy into a tenancy by the entirety (EPTL 6-2.1[4]; 6-2.2[b]; Hiles v. Fisher, 144 NY 306 [1895]; Novak v. Novak, 135 Misc 2d 909 [Sup Ct, Dutchess County 1987]). Thus, the decedent and objectant took title to the property as joint tenants with right of survivorship and continued to hold the Residence as such even after their marriage.
Joint tenancy is a form of co-ownership of real or personal property existing between two or more persons. In a joint tenancy, "each person has exactly the same right in that interest as his co-tenant or co-tenants" (5 Warren's Heaton on Surrogate's Court Practice §62.02 [7th ed]). Joint tenancy gives each joint tenant an equal right to share in the enjoyment of the estate during their lives (Anonymous v. Anonymous, 2 Misc 3d 1002, 2004 NY Slip Op 50080[U] [Sup Ct, New York County 2004]); however, "[j]oint tenancy does not create equality of interests, but rather, the right of survivorship" (Furnace v. Comins, 263 AD2d 856, 857 [2d Dept 1999], quoting Novak v. Novak, 135 Misc 2d 909, 910 [Sup Ct, Dutchess County 1987]).
During the lifetimes of the joint tenants, their interests are partitionable (Novak v. Novak, 135 Misc 2d 909, 910 [Sup Ct, Dutchess County 1987]. In addition, either tenant may sever the joint tenancy during the lives of the joint tenants (7 Warren's Heaton on Surrogate's Court Practice §92.06 [7th ed]). A joint tenant may unilaterally terminate joint tenancy by alienating his share (Schrier v. Tax Appeals Tribunal, 194 AD2d 273 [3d Dept 1993], appeal dismissed 83 NY2d 944 [1944]; Matter of Sutter, 138 Misc 85 [Surr Ct, Monroe County 1930], aff'd 232 App Div 45 [4th Dept 1931], aff'd 258 NY 104 [1932]; 3 Warren's Weed New York Real Property §27.72 [2006]) without the assent of the other joint tenant (Prario v. Novo, 168 Misc 2d 610 [Sup Ct, Westchester County 1996]). Once the joint tenancy is severed, ownership of the property is transferred to a tenancy in common (Matter of Lorch, 33 NYS2d 157 [Surr Ct, Queens County 1941]).
(Cytron v. Malinowitz, 2006 NY Slip Op 518 99[U] [Sup Ct, Kings County 2006]).
Here, the objectant does not dispute the amount of the respective initial contributions toward the purchase price of the Residence. Objectant contends that (1) the motion is procedurally defective because it is not supported by an affidavit of a person having knowledge of the facts, (2) the theory of equitable distribution of proceeds to a sale of real property has never been applied in an estates law context, and (3) assuming petitioner's theory of distribution is correct, petitioner has failed to give the objectant credit for carrying costs paid by him.
The court finds objectant's first argument regarding the insufficiency of the motion unavailing. None of the documents annexed to the motion which are relied upon to establish the respective contributions of the objectant and decedent have been refuted.
The objectant's argument that the theory set forth by petitioner is applicable only in the matrimonial equitable distribution context is likewise unavailing. Here, the decedent and objectant took title to the Residence as joint tenants with right of survivorship. In November of 1999, when decedent transferred her entire interest in and to the residence to petitioner retaining a life estate, she unilaterally terminated the joint tenancy. At that point, petitioner and the objectant held the Residence as tenants in common (Matter of Lorch, 33 NYS2d 157 [Surr Ct, Queens County 1941]). Thereafter, in April of 2002, the objectant transferred his entire interest in the Residence, while retaining a life...
To continue reading
Request your trial