In this heavily contested proceeding, the Court in its previous decision and order dated March 20, 2018 required further information regarding the issue of use and occupancy for the real property located at 196 Livingston Avenue, Staten Island, New York 10314. Subsequently, counsel for Frances Valek and Paul P. Neller, (petitioners), and counsel for Georgianna E. Neller (respondent) filed papers which include:1. Attorney Affirmation in Response to the Court Order seeking further information regarding use and occupancy filed by counsel for petitioners on July 2, 2018 (“Petitioners Affirmation”);2. Affirmation regarding use and occupancy filed by counsel for respondent on July 18, 2018 (“Respondent’s Affirmation”);3. Reply filed by counsel for petitioners on August 2, 2018.No papers were filed by William Neller. Upon review of the papers filed, a hearing was held regarding the issue on November 1, 2018. During the hearing, counsel for petitioners presented two witnesses including:1. Paul P. Neller (co-Administrator of the Estate of Mary Neller, a/k/a Mary C. Neller and co-petitioner in this proceeding;2. George K. Wonica (a real estate professional who was qualified as an expert witness);The issue before the Court is whether respondents as co-tenants are liable to the petitioners who serve as co-administrators for rent arrears and use and occupancy in the amount of $197,600.00. Counsel for petitioners argue that petitioners as the co-administrators of the Estate have the right to possess the property, and collect rents despite the fact they are co-tenants in common with respondents.Counsel for respondent argues that a tenant in common cannot be successfully sued for rent by a co-tenant. Additionally, counsel for respondent argues that there must be an ouster or acts amounting to the denial of the rights of co-tenants, for a tenant in possession to be charged for the rent. Counsel for respondent argues that an ouster did not occur and that the other co-tenants were not excluded from the premises.However, the difference here as argued by counsel for the petitioners is that the petitioners are not only co-tenants but are also serving as co-administrators (see, Limberg v. Limberg, 256 AD 721). Furthermore, in the Court’s previous decision and order dated March 20, 2018 it stated “additionally the title that vests in such distributees is subject to the right of the administrator to take possession of the property, collect the rents, manage the property, and sell it for the purpose of paying debts and distribution (see, EPTL 11-1.1 and Kinard v. Rosenblatt, 39 Misc3d 1215(a)).”CONCLUSIONPetitioners seek a judgment in the amount of $197,600.00 for a time period from the date of death of the decedent, July 26, 2009 to June 30, 2018. Counsel for the respondent does not dispute that the respondent and William Neller have been living in the house during that time. The Court finds that George K. Wonica’s testimony, a real estate professional with vast years of experience, was credible in determining the proper rental value. It is normal for there to be a reasonable period to occupy after the decedent’s death. Additionally, Letters of Administration were not issued to the petitioners until October 23, 2013. Further, a ten (10) day notice to quit was served on respondent, Georgianna E. Neller and William Neller on December 12, 2013.Based on the discussion above and review of the report by George K. Wonica, the Court finds that the respondent and William Neller are liable for use and occupancy of the premises for the time period January 1, 2014 to June 30, 2018 in the amount of $108,000.00.The application for costs and disbursements are denied.Settle Order on Notice.This matter is on for control for February 13, 2019 at 11:00 a.m.The clerk of the Court is directed to mail a copy of this decision to all attorneys who have appeared in the matter.Dated: December 20, 2018
