Notice of Motion - Affidavits - Exhibits.................................... 1-6

Answering Affidavits - Exhibits................................................7-10

Reply Affidavits.......................................................................... 11-12

This is an action for the partition and sale of certain real property located in Flushing, Queens County, New York. Through a deed dated March 11, 2006, Goon Oy-Foon Gong transferred the subject property to Henry Kong, James Hor, and William Hor, as tenants in common, reserving a life estate for herself. The grantor died on January 12, 2010, thereby extinguishing her life estate (see, 1 Rasch, New York Law and Practice of Real Property § 6:8, at 69 [2d ed]).

Henry Kong, a resident of New Jersey, died testate on May 24, 2008. On June 9, 2008, decedent's last will and testament, dated April 6, 2005, was admitted to probate, and letters testamentary thereon were issued to Yukiko Kong by the Middlesex County Surrogate's Court of the State of New Jersey. It is alleged by plaintiffs that plaintiff James Hor, the estate of decedent Henry Kong, and defendant William Hor each hold an undivided one-third interest in the subject property as tenants in common. [*2]

The plaintiffs, upon the foregoing papers, have moved for summary judgment. Plaintiff Yukiko Kong has not obtained ancillary letters testamentary or ancillary probate of decedent's will from the Surrogate's Court of the State of New York pursuant to SCPA article 16 (see generally, Matter of Stern, 91 NY2d 591 [1998]). The plaintiff Kong has not applied to the Surrogate's Court for approval to bring a partition action on behalf of decedent's estate, as required by SCPA 1901(2)(i) and RPAPL 901(4). Plaintiff Kong, therefore, may not maintain this action in New York for partition of property located in this State (EPTL 11-3.1; SCPA 1901[2]; RPAPL 901[4]; see, Hershkowitz v Walker, 192 Misc 2d 340 [App T 2nd Dept. 2002]; 6-11 New York Civil Practice:EPTL 11-3.1[3]).

If decedent Henry Kong were alive, there would be no doubt that he should have been made a party to this action. Thus, in light of his death, the executor of his estate should be made a defendant herein (RPAPL 903[6]). Having already submitted to the Court's jurisdiction, executor Yukiko Kong may be added as a defendant by plaintiff James Hor filing and serving an amended complaint. The caption of the amended complaint shall reflect the change in party status.

The plaintiffs, furthermore, have not submitted a copy of decedent's will or otherwise established the disposition of decedent's share of the subject property under the will. Since title to real property that is specifically devised in a will passes directly to the named beneficiaries at the time of decedent's death (see, Matter of Ballesteros, 20 AD3d 414 [2nd Dept. 2005]; Matter of Torricini, 249 AD2d 401 [2nd Dept. 1998]), if decedent's interest in the property at issue herein was the subject of a specific bequest, the beneficiaries thereof should be joined as defendants in this partition action (RPAPL 903). The Court thus grants plaintiff James Hor leave to join any such beneficiaries as party defendants (CPLR 1003) by filing and serving a supplemental summons and amended complaint (CPLR 305[a]).

Accordingly, the motion for summary judgment is denied without prejudice to renewal after issue is joined by any and all defendants added in accordance with this decision or upon papers demonstrating that decedent's interest in the subject property was not specifically devised, but is an asset of the estate. Upon searching the record on this motion, defendant William Hor is granted summary judgment dismissing the complaint insofar as it is asserted by plaintiff Yukiko Kong.

The foregoing constitutes the decision, opinion, and order of the Court.

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J.S.C.

Dated: June 30, 2011

Appearances of Counsel: