The within action pursuant to RPAPL article 15 for a determination of a claim to title by adverse possession was transferred to this Court by an order of the Supreme Court, Queens County. Plaintiffs have now moved for an order (a) staying discovery; (b) permitting the filing and service of supplemental summons and second amended complaint; (c) preliminarily enjoining defendant from selling or otherwise interfering with plaintiffs' use, occupation and enjoyment of the subject property, and (d) granting leave to add a third cause of action to declare that neither plaintiff Shirley M. Kinard nor her agent Sylvia Gail Kinard are in default under a contract of sale with defendant, and for a money judgment.

Absent significant prejudice or surprise to the nonmoving party, leave to amend a pleading should be freely given where the proposed amendment is neither palpably insufficient nor devoid of merit (see CPLR 3025[b]; Edenwald Contracting Co. v New York, 60 NY2d 957; Giuffre v DiLeo, 90 AD3d 602).

Although defendant points out that the complaint has been amended previously, and that there has been delay in seeking the present amendment, defendant has not shown [*2]that she will suffer significant prejudice (see Capellino Abattoir, Inc. v Lieberman, 70 AD2d 713). Nor can it be said that plaintiffs' application to amend to the complaint is palpably insufficient or devoid of merit en toto.

RPAPL § 1515 establishes the parameters for a complaint in an action brought pursuant Article 15. It requires that the complaint allege facts showing, inter alia, whether any defendant is known or unknown, is or might be an infant, mentally ill or an alcohol abuser; whether the judgment might affect persons not in being or ascertained at the commencement of the action who by any contingency could afterward become entitled to a beneficial estate or interest in the property; and whether every person in being who would have been entitled to such an estate or interest if such event had happened immediately before the commencement of the action is named as a party (RPAPL § 1515[1], [1][c], [1][d]). The section further provides that the complaint describe the property with common certainty, setting forth the tract and lot number, so that from the description possession of the property claimed may be delivered to plaintiffs if entitled (RPAPL § 1515[2]). Therefore, a proposed amendment by plaintiff for the purpose of comporting with the article's pleading requirements would be appropriate.

Where it appears that a person not a party to the action may have an estate or interest in the real property which may in any manner be affected by the judgment, the court, upon application of such person or of any party to the action, or even for that matter upon its own motion, may direct that such person be made a party (RPAPL § 1511[2]; see 2-24 Warren's Weed New York Real Property § 24.29).

The pertinent facts are that the decedent, a domiciliary of Wisconsin, inherited the subject property upon her mother's death in 1989. The decedent died intestate in Wisconsin on August 27, 2005 and the Public Administrator of Queens County was appointed as her personal representative in New York and offered the subject property for public sale. In the meantime, Shirley M. Kinard commenced an RPAPL Article 15 action against the public administrator in the supreme court asserting title to the property vested in her by adverse possession. The complaint alleges that Alisa Dawn Johnson took possession of the property in 1993, and that she was later joined in her possession by her mother Shirley M. Kinard in August 2000. Based upon the above, it is contended that title passed from decedent in 2004.

Plaintiffs now seek leave by this motion to add additional party defendants.

The interest held by a contract vendee is "an interest in real property" as that term is defined in article 15 (RPAPL § 1501[5]). In this matter, it is alleged that a successful bid for the property was made at a public auction by a third party who deposited money with defendant in support of the bid. This person has an interest in the real property at issue and properly should be joined as a party.

Plaintiffs also allege that there are first cousins or heirs of first cousins of decedent who have an interest in the subject property as distributees or derivatively therefrom and, therefore, that they should be individually joined as parties. The status of these purported distributees, however, has not yet been established. Since the subject real property is not disposed of by will, its descent is not governed by the law of the state of decedent's domicile, but pursuant to the law of the situs (see Matter of Good, 304 NY 110; EPTL 3-5.1[b][1]). Therefore, the question of who the decedent's distributees are, for the purpose of ascertaining those persons having any interest in the subject property, will be [*3]determined by New York law (see EPTL 4-1.1).^[FN1]

Although plaintiffs contend that all of decedent's distributees are known and should be identified in an amended pleading, their assertions are erroneous. In fact, in addition to the alleged distributees the plaintiffs request be joined as parties, there are several other persons who have appeared in a proceeding to judicially settle the public administrator's account who are claiming to be distributees. However, the actual status of all these individuals is unknown and they currently are simply alleged distributees.

Plaintiffs correctly note that title to real property of an intestate immediately vests upon death in the statutory distributees by operation of law (see Matter of Roberts, 314 NY 369, 377). However, as stated, all of the decedent's distributees are not determinable at this time. 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 purposes of paying debts and distribution (EPTL 11-1.1; Matter of Taylor, NYLJ, Feb. 2, 2005, at 30, col 6; Matter of Burstein, 153 Misc 515). Therefore, notwithstanding that legal title vests in the statutory distributees, their right to possess and enjoy the property is subject to the administrator's statutory tenancy. This vesting in the administrator of possession of the property, therefore, necessarily invests in her the ability to defend it against any encroachment or injury by others (see Matter of Burstein, 153 Misc at 518).

While RPAPL § 1511(2) provides that the court may direct that a person who may have an estate or beneficial interest in the real property which may be affected by the judgment be made a party to the action, it would be illogical in this matter to join only some alleged distributees and to exclude others, either known or unknown, and impractical to consistently have to add other individuals as they become known, especially when their interests are protected by a current party.

Pursuant to SCPA 1123(2)(i)(1), the public administrator, who is currently a defendant in the action and will remain so under the proposed amendment, may receive process as a necessary party in any proceeding pending in the court where service of process or notice on behalf of any known or unknown person is directed by the court. Section 1123 (2)(i)(4) of the statute further provides that in all such proceedings the public administrator may take such action in behalf of such person or persons as a person interested. Therefore, given that defendant is vested with the power to defend the subject property against any encroachment or injury by others by virtue of her status as the administrator of decedent's estate, that the identities of all decedent's statutory distributees are not determinable at this time, and that the Public Administrator is able to receive process on behalf of those persons who may have an interest in the subject property as distributees of decedent and take such action on their behalf as the persons interested, the necessity to amend the complaint to specifically name and serve alleged distributees is, in this instance, unwarranted (see CPLR § 1004). [*4]

As to those persons sought to be designated as John Doe and Jane Doe, representing persons claiming to have an interest in the property by reason of the acts of the public administrator or who may have bid at the auction, no basis has been set forth in the moving papers for the need to add any such persons as parties nor are they required by statute.

With respect to the branch of the motion seeking to add a cause of action as it relates to the contract of sale and deposits, it is alleged that Sylvia G. Kinard, a daughter of plaintiff Shirley M. Kinard, acting as an agent on behalf of her mother as an undisclosed principal, was the successful bidder at an auction sale for the subject property and paid a deposit to defendant following the auction and on signing a contract of sale. The sale did not close and defendant declared Sylvia G. Kinard in default and elected to retain the total deposit. It is further alleged that neither plaintiff nor her agent are in default of the contract since defendant had no title to convey, and the plaintiffs demand the return of the full deposit, together with interest. Since this proposed claim relates to the subject property and affects the affairs of the estate, the amendment to the complaint to add this cause of action is proper.

The branch of the motion which seeks to preliminarily enjoin defendant from selling or otherwise interfering with plaintiffs' use, occupation and enjoyment of the subject property during the pendency of the action merely seeks to maintain the status quo and, therefore, is appropriate.

Upon the foregoing, the branches of the motion for permission to file and serve a supplemental summons and second amended complaint to comply with the pleading requirements contained in RPAPL § 1515, to add necessary parties, and to add a third cause of action seeking a money judgment is granted to the extent that plaintiffs are given leave to serve and file an amended complaint in the form proposed, with the exception that the additional parties to be named shall be limited as stated above, within thirty days from the date of this order.

The branch of the motion for an order preliminarily enjoining defendant from selling or otherwise interfering with plaintiffs' use, occupation and enjoyment of the subject property is granted to the extent that defendant shall not sell, transfer, encumber or otherwise dispose of the subject property during the pendency of this action.

The branch of the motion for an order staying discovery is granted to the extent that discovery shall be stayed until the expiration of the period for service of answering papers to the amended complaint after which time any party may request a preliminary conference.

This is the decision and order of the court.

Dated: April 12, 2013__________________________

SURROGATE