Messaros, In re

• Decision Date: 01 June 1999
• Citation: 692 N.Y.S.2d 90,262 AD2d 322
• Parties: In the Matter of Clifford MESSAROS, deceased. Beatrice C. Messaros, respondent; Clifford Messaros, Jr., etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

Page 90

692 N.Y.S.2d 90

In the Matter of Clifford MESSAROS, deceased.

Beatrice C. Messaros, respondent;

Clifford Messaros, Jr., etc., et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

June 1, 1999.

Robert C. Crimmins, Riverhead, N.Y. (Linda D. Calder of counsel), for appellants.

Osborne & McGowan, P.C., East Hampton, N.Y. (Thomas J. Osborne of counsel), for respondent.

LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, WILLIAM C. THOMPSON and THOMAS R. SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding against a fiduciary pursuant to SCPA 2102 to compel payment of rental income to the petitioner, and a cross petition for the construction of a will, the appeal is from so much of an order of the Surrogate's Court, Suffolk County (Prudenti, S.), dated March 12, 1998, as directed that certain payments be made to the petitioner from the gross rental income received from real property situated in New Jersey and devised to Clifford Messaros, Jr., Michael C. Messaros, and Regina Pippidis.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the balance of the order is vacated, and the proceeding is dismissed.

Clifford Messaros (hereinafter the decedent) died on September 16, 1995, domiciled in Suffolk County. He was survived by his wife, the petitioner Beatrice C. Messaros (hereinafter the petitioner) and three adult children, Clifford Messaros, Jr., Michael C. Messaros, and Regina Pippidis (hereinafter the children). The petitioner and Clifford Messaros, Jr., are co-executors of the decedent's estate. In Article Third of the decedent's Last Will and Testament, the decedent devised two parcels of real property located in Wyckoff, New Jersey, to the children as tenants-in-common. Article Third further provided, in relevant part:

"My wife, BEATRICE C. MESSAROS, during the term of her life, she having survived me, shall receive seventy percent (70%) of the net income from this property, or a minimum of $45,000.00 per annum, to be paid in convenient quarterly or other installments".

A dispute has arisen between the petitioner and children as to the meaning and application of Article Third, specifically, as to whether or not payments to the petitioner are limited to the net income of the subject parcels of real properties, taking into account the properties' expenses. The dispositive issue on this appeal, however, is not the manner in which the income is to be distributed but whether income produced from the properties is itself considered to be real property or personal property. If it is considered real property, the matter of such income and the devise under which it should be distributed must be decided by a court where the real properties are located, in this case, in New Jersey. If, on the other hand, the income is personal property, then the Surrogate's Court of this State has the jurisdiction to construe Article Third of the decedent's Will and determine the manner in which income is to be distributed (see, EPTL 3-5.1[b], ).

Whether an estate in land is real property and governed by EPTL...