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). If the proponent makes out a prima facie showing, the burden shifts to the opponent to assemble and lay bare affirmative proof to establish the existence of a genuine triable issue of fact (See, Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833; Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, affd 49 NY2d 924). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions, surmise, conjecture or suspicion will not suffice (See, Shaw v. Time-Life Records, 38 NY2d 201, 207; Matter of O’Hara, 85 AD2d 669, 661). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion (See, Robinson v. Strong Memorial Hosp., 98 AD2d 976; Gitlin v. Chirinkin, 98 AD3d 561, 561-562). If there is any doubt as to the existence of a triable issue of fact, the motion must be denied (See, Dykeman v. Heht, 52 AD3d 767, 769; Celardo v. Bell, 222 AD2d 547, 548). In a proceeding to settle a fiduciary’s account, “the party submitting the account has the burden of proving that he or she has fully accounted for all the assets of the estate, and this evidentiary burden does not change in the event the account is contested. While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the burden then shifts back to the fiduciary to prove by a fair preponderance of the evidence that the account is accurate and complete” (Matter of Doman, 110 AD3d 1073, citing Matter of Schnare 191 AD2d 859; see, Matter of Carbone, 101 AD3d 866, Matter of Tract, 284 AD2d 543, Matter of Anolik, 274 AD2d 515) Petitioner has filed her petition and accounting as the fiduciary of the estate. Annexed to the account is her sworn affidavit stating, inter alia, that the schedules of assets of the estate are true and complete and include all money and property of any kind, and that she does not know of any error in the account. The submission of the accounting satisfies her initial burden of showing that she has fully accounted for all of the assets of the estate and the accounting itself is complete and accurate (See, SCPA §2209; Matter of Settel, __ Misc 3d __, 2008 NY Misc. LEXIS 1819). The motion for summary judgment by the petitioner is supported by the verified petition establishing all assets collected, expenses paid, claims accepted and rejected, and proposed distribution to the distributees. Accordingly, petitioner has made a prima facie showing of entitlement to summary judgment dismissing the objections (CPLR §3212[b]). In support of their opposition and cross-motion, objectants submitted among other things, an instrument purported to be a copy of a last will and testament of the decedent which leaves the property in contention to Annette. As stated above, the objectants now argue that they are the rightful owners of the property. As no evidence in support of their rejected claims has been submitted, these claims are deemed rejected. Turning to the balance of the objectants’ cross-motion, the memorandum of law and argument in support thereof do not specifically address the objections as such, but rather base their claim for relief on the assertion that the Public Administrator did not have authority to sell the real property because it was specifically devised to Annette Adams. The problem with this argument, and most of the other legal assertions set forth herein, is that decedent’s purported will was never admitted to probate. An original document was never submitted, a probate proceeding was never instituted, and a decree was never issued. Although the Public Administrator’s accounting indicated that she found a copy of a document dated August 18, 1995 and a copy of a document dated August 13, 1997, purporting to be the decedent’s last will and testament and codicil, respectively, the originals have not been produced, and neither an original will nor a codicil was ever filed with the court by the proponent of the will. As such, the will and codicil are presumed to have been revoked by the testator (SCPA §1407(1); Collyer v. Collyer, 110 NY 481; Matter of Demetriou, 48 AD3d 463). Annette Adams, the nominated executor and alleged devisee of the real property under these instruments never filed a proceeding to probate a copy of the will and the codicil, and never provided any explanation as to the reason for the delay. Upon the death of the decedent, Annette became one of the owners of the real property, not the sole owner. As the will and codicil were never admitted to probate, such documents do not bestow authority on Annette to permit her son and his wife to reside in the property, much less to oust Linda and Richard, who each acquired a one-seventh title to the property upon the decedent’s death by operation of law. All of the objectants’ arguments in this regard consequently fail. The instrument relied on is not a valid will and it did not create a property interest in anyone. As a matter of law, the owners of the property at the time of decedent’s death were the decedent’s distributees (see SCPA 1408; EPTL 4-1.1). Although objectants now also assert a claim of title by adverse possession in their objections, this claim is not specifically argued for in their cross-motion. However, the court notes that the only individual who asserted a claim of ownership of the property prior to the Public Administrator’s sale was Annette. On the other hand, Derrick and Toinetta took possession of the premises with her consent and never asserted an ownership interest against any of the other distributees. A party seeking to establish title to real property by adverse possession on a claim not based upon a written instrument must demonstrate that the property at issue was either “usually cultivated or improved” or “protected by a substantial enclosure” (RPAPL 522[1], [2]). The proponent must also establish the common-law elements of adverse possession which are that the possession was “(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required [10 year] period” (Walling v. Przybylo, 7 NY3d 228, 232; Vitale v. Witts, 93 AD3d 714; Beyer v. Patierno, 29 AD3d 613). Since obtaining title by adverse possession is disfavored as a matter of policy, a proponent must prove the aforementioned elements by clear and convincing evidence (See, Warren v. Carreras, 133 AD3d 592, 594; CSC Acquisition-NY, Inc. v. 404 County Rd. 39A, Inc., 96 AD3d 986, 987). Based on the law, under these facts the objectants have not established any rights in the property at all. Accordingly, the court finds that objectants failed to establish a prima facie claim for title to the property by adverse possession as their arguments are substantially and procedurally defective. Finally, objectant’s argument that this court lacks subject matter over this dispute or the real property at issue is unfounded (see SCPA §201). The Public Administrator was appointed to recover estate assets and ensure decedent’s distributees received their proper share after the payment of administrative expenses. All actions taken were well within her powers (see SCPA Art. 11). Accordingly, based on the papers presented and upon oral argument on the record, the Public Administrator’s motion is granted in its entirety and the cross-motion for summary judgment is denied in its entirety. Settle Decree. Dated: November 7, 2022
