Estate Can't Seek Eviction of Family Member in Surrogate’s Court

Deceased landlord’s executor sought ejectment of tenant and two of tenant’s brothers from the premises. Tenant and one brother moved out. The other brother, who was deceased landlord’s son, asked the court to dismiss the case. He claimed that Surrogate’s Court didn’t have the authority to rule on the issues raised. The court ruled for the son and dismissed the case. Landlord’s children took possession of the premises in kind and behaved as co-owners. So the property’s character as an estate asset was negated and the executor’s power to take possession for purposes of selling the property was lost by the actions of the beneficiaries as co-tenants. Since the beneficiaries managed and controlled the property in their capacity as co-tenants for 20 years since landlord died, the court lacked jurisdiction to determine the existing dispute between the co-tenants.

Matter of O’Hara: Index No. 1994-3475/A, NYLJ 1202751840790 (Surr. Ct. Queens; 2/10/16; Kelly, Surr.)