Voyiatgis v. Lelekakis (In re Voyiatgis)

• Decision Date: 16 October 2013
• Citation: 2013 N.Y. Slip Op. 06700,110 A.D.3d 911,973 N.Y.S.2d 302
• Parties: In the Matter of James VOYIATGIS, deceased. Terry Voyiatgis, petitioner-respondent; v. Elaine Lelekakis, respondent-appellant; et al., respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 911

973 N.Y.S.2d 302

2013 N.Y. Slip Op. 06700

In the Matter of James VOYIATGIS, deceased.Terry Voyiatgis, petitioner-respondent;

v.Elaine Lelekakis, respondent-appellant; et al., respondent.

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

Oct. 16, 2013.

Tomas Torto, New York, N.Y. (Jason Levine of counsel), for appellant.

Law Offices of Michael F. Mongelli II, P.C., Flushing, N.Y., for petitioner-respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

In a proceeding for the administration of a decedent's estate, in which the administrator petitioned pursuant to SCPA 2103, inter alia, for the turnover of an interest in certain real property, Elaine Lelekakis appeals, as limited by her brief, from so much of a decree of the Surrogate's Court, Queens County (Kelly, S.), dated March 8, 2011, as, upon, in effect, confirming the report of a referee dated November 23, 2010, made after a hearing, granted that branch of the petition which was to recover the interest in the real property, and directed her and John Voyiatgis, as executor of the estate of George Voyiatgis, to each tender a deed conveying an undivided one-sixth share of the subject real property to the estate of James Voyiatgis.

ORDERED that the appeal from so much of the decree as directed John Voyiatgis, as executor of the estate of George Voyiatgis, to tender a deed conveying an undivided one-sixth share of the subject real property to the estate of James Voyiatgis is dismissed, as the appellant is not aggrieved by that portion of the decree ( seeCPLR 5511); and it is further,

ORDERED that the decree is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the petitioner, as administrator of the decedent's estate.

Prior to August 19, 2002, James Voyiatgis (hereinafter the decedent), his sister, Elaine Lelekakis (hereinafter Elaine), and his brother, George Voyiatgis (hereinafter George), each owned an undivided one-third interest in certain real property as tenants-in-common. By deed dated August 19, 2002, the decedent conveyed his one-third interest equally to Elaine and George, thereby increasing the respective interests of Elaine and George in the property to 50%. In June 2003, the decedent died.

In 2006, the petitioner, as the administrator of the decedent's estate, petitioned, inter alia, for the return, to the decedent's estate, of the one-third interest in the subject property that the decedent had transferred to Elaine and George. In February 2009, George died. Thereafter, a hearing was held before a referee, appointed pursuant to SCPA 506(1) to hear and report in connection with the issue of whether the decedent's inter vivos transfer of his one-third interest in the subject real property was effected for the decedent's convenience, or constituted a gift. The petitioner presented evidence...