ESTATE OF LOUISE ELLIOT, Deceased (18-1995/B) — In this proceeding to judicially settle her account, the Public Administrator of Queens County (“Public Administrator”) moves pursuant to CPLR §3212 for summary judgment dismissing the objections filed by Derrick Adams (“Derrick”) and Toinetta Adams (“Toinetta”). Derrick and Toinetta have cross moved in opposition to the motion and are seeking summary judgment in their favor alleging, among other things, that the Public Administrator was prohibited from selling the decedent’s real property, and that the court lacks subject matter jurisdiction of the matter. The guardian ad litem appointed for unknown distributees, as well as those distributees whose whereabouts are unknown, filed an affirmation in support of the Public Administrator’s motion for summary judgment. The salient facts are as follows: The decedent, Louise Elliot died on June 30, 2000, survived by six children and one grandchild, a daughter of a pre-deceased child. At the time of her death, decedent was the sole owner of real property located at 109-69 133rd Street, Ozone Park, New York. The Public Administrator was appointed the administrator of the decedent’s estate on February 13, 2020, almost 20 years after the decedent’s death. The two objectants are Derrick, who is a grandchild of the decedent and also the son of distributee Annette Adams, and Toinetta, his spouse. It is undisputed that Derrick and Toinetta moved into the property in April of 2001, within a year after the decedent’s death and continued to reside there. It is also undisputed that prior to Derrick and Toinetta moving into the property, Annette had ousted two of the decedent’s other children, Linda Sidberry (“Linda”) and Richard Elliot (“Richard”) by falsely claiming she was the owner of the property. Specifically, Linda and Richard were told that the decedent had a will and a codicil that devised the property to her. Linda and Richard moved out of the property based on that representation and Derrick and Toinetta took up residence there with permission from Derrick’s mother Annette. Letters of Administration were issued to the Public Administrator on February 13, 2020, and in April 2021, the Public Administrator sold the real property. Prior to selling the real property, the Public Administrator avers that the objectants cooperated in facilitating the sale to the purchaser by allowing her access to the premises, and voluntarily vacating the property upon the sale of same without necessitating an eviction proceeding against them. Thereafter, the Public Administrator filed this proceeding for judicial settlement of her final account as administrator of the estate. The accounting provides, inter alia, for distribution of the net estate assets pursuant to EPTL 4-1.1, equally between all of the decedent’s distributees. Prior to the filing of an accounting, the objectants had filed a claim with the Public Administrator in the amount of $103,836.54 seeking reimbursement for, among other things, expenses, repairs, and renovations to the property they allegedly made from the inception of their tenancy. The claim was rejected by the Public Administrator on the basis of lack of proof and also that the statute of limitations had run on alleged payments made to contractors to perform work in 2008 and 2009. The Public Administrator also asserted objectants were potentially liable for use and occupancy of the premises. The accounting reflects these claims and rejections. On the return of citation, Derrick and Toinetta filed objections to the Public Administrator’s accounting. Curiously, the objections filed did not specifically address the rejection of their claims by the Public Administrator. Instead, Derrick and Toinetta set forth other objections: 1) The accounting presumed a landlord-tenant relationship 2) The objectants were owners of the property by adverse possession 3) The objectants were not compensated for the sale of the real property 4) A breach of contract claim against Annette Adams. After settlement conferences proved unsuccessful, the Public Administrator filed the within motion for summary judgment dismissing the objections and Derrick and Toinette filed a cross-motion for summary judgment. At the outset, the court notes that Derrick and Toinetta’s cross-motion and opposition to the Public Administrator’s motion are untimely (CPLR §2215; §2214). Nevertheless, in the interest of justice and after oral argument on the record, the court will address the merits of the motion and cross-motion.
Notwithstanding the differing burdens of proof at trial, on a motion for summary judgment the proponent must establish his or her claim or defense sufficient to warrant the court in awarding judgment as a matter of law, tendering sufficient evidence to demonstrate the absence any material issues of fact (See, Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Zuckerman v. City of New York, 49 NY2d 557, 562).
