[*1]
Matter of Seviroli
2004 NY Slip Op 51659(U)
Decided on December 20, 2004
Surrogate's Court, Nassau County
Riordan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 20, 2004
Surrogate's Court, Nassau County


In the Matter of the Estate of JOSEPH SEVIROLI, Deceased.




322635

John B. Riordan, J.

In this proceeding by the executrix, the estate sought possession of decedent's real property from the surviving spouse, her infant child and any and all other persons or entities in possession of the premises. Additionally, the executrix sought "a monetary judgment for use and occupancy payments against Maria Del Pilar Arbelaez Seviroli," the surviving spouse, (hereinafter "Maria Seviroli") plus interest from October 1, 2002 and monthly use and occupancy for each month thereafter, plus attorneys fees, costs and disbursements. This court granted the executrix partial summary judgment on the issue of possession and set down the issue of the reasonable value of use and occupancy for trial (Matter of Kazuba, 2 Misc 3d 1003 A, 2004 NY Misc. LEXIS 178, 2004 NY Slip Op 50128U). The court adhered to that determination upon reargument (Matter of Kazuba, 4 Misc 3d 1014 A, 2004 NY Misc. LEXIS 1370, 2004 NY Slip Op 50879U). Maria Seviroli appeared in this proceeding individually and as the guardian of the property of the infant, John Joseph Seviroli (see verified answer dated February 6, 2003). The infant has also appeared by his guardian ad litem appointed by this court (see, Matter of Seviroli, Decision No. 986, December 5, 2002). A trial was had before this court on September 20, 2004 on the issue of the reasonable value of the use and occupancy of the decedent's condominium. At the trial, counsel for the surviving spouse moved to dismiss the petition as against the infant, John Joseph Seviroli, on the claim for use and occupancy. He asserted the only issue is whether Mrs. Seviroli is personally liable for use and occupancy. This court determined to have a fact finding hearing on the value of use and occupancy and directed the parties to submit post trial memoranda on the issue of liability, if any, for the reasonable value of use and occupancy of the premises. Mrs. Seviroli moves as the guardian of the infant's property pursuant to CPLR 3211(a)(7) to dismiss the petition with prejudice against the infant on the grounds that the petition fails to state a cause of action against the infant for the fair and reasonable value of the use and occupancy of the premises. Additionally, she argues that the petition fails to state a cause of action against her individually for the reasonable value of the use and occupancy and that petitioner has failed to show the value of use and occupancy for the appropriate period of time. Analysis of the factual background and the procedural history of the case is necessary to determine these preliminary issues of liability for use and occupancy.

FACTUAL BACKGROUND


Joseph Seviroli died on February 21, 2002, residing at the premises at 100 Hilton Avenue, Garden City, New York. His Will dated August 24, 1999 was admitted to probate on July 8, 2002 and letters testamentary were thereafter issued to petitioner, his sister. The decedent was survived by a spouse, Maria Seviroli, and three children, Maria Beau, Joseph Seviroli, Jr. and John Joseph Seviroli, the infant and child of Maria Seviroli. From the date of death of the decedent until August 31, 2004, Maria Seviroli and John Joseph Seviroli used and occupied the premises in Garden City. By letter dated July 31, 2002 the executrix, through her counsel, [*2]requested that Maria Seviroli remit payment to the estate for use and occupancy commencing August 1, 2002. Maria Seviroli did not pay any sums to the estate for use and occupancy from the date of the decedent's death until she vacated the premises. Her counsel advised the executrix that the infant, as an afterborn (EPTL 5-3.2), has an absolute right to possession of the premises as a tenant-in-common with the other residuary beneficiaries.

Upon the filing of this proceeding by the executrix for eviction of the occupants and the payment of use and occupancy, the respondent, Maria Seviroli, individually and as guardian of the property of John Joseph Seviroli, moved to dismiss the petition for failure to state a cause of action and lack of capacity of the executrix to seek the relief. The court denied that motion (see, Matter of Seviroli, Decision No. 17, January 10, 2003).

INFANT'S LIABILITY FOR USE AND OCCUPANCY


For the first time, respondent now argues that the relief sought for use and occupancy in the petition is made only individually against Maria Seviroli. The "wherefore" clause of the petition provides, in relevant part, that: "Petitioner respectfully requests that this Court issue an Order . . . granting a monetary judgment for use and occupancy payments against Maria DelPilar Arbelaez Seviroli in the sum of $43,750.00 . . . ."

It is argued that as against the infant, the petition is utterly silent with respect to use and occupancy. However, the petition clearly names the infant as a party in the prayer in the petition seeking possession and vacating of the premises, and the issuance of a warrant of eviction to remove all the occupants. This proceeding is essentially akin to a landlord-tenant summary proceeding (see, Article 7, Real Property Actions and Proceedings Law [RPAPL]). In addition to determining the right of the parties in a summary proceeding to the possession of the real property in question, the court may enter a judgment for rent due or for an amount equal to the fair value of the use and occupancy of the premises, if the notice of petition contains a demand for such a judgment (Real Property Actions and Proceedings Law §741[5];14 Carmody-Wait 2d §90:12). The prevailing owner in a summary holdover proceeding is entitled to use and occupancy payments for the period of an unauthorized hold over( C& N Camera & Electronics, Inc. v Farmore Realty, Inc., 178 AD2d 310 [1991]). Use and occupancy may also be awarded against subtenants and other third parties in possession (Albany v White, 46 Misc 2d 915 [1965]). Real Property Actions and Proceedings Law 747 grants the court in a summary proceeding general authority to determine the rights of the parties.

Accordingly, under these circumstances, the failure to refer specifically to the infant in that portion of the "wherefore" clause requesting judgment for use and occupancy does not bar the executrix from recovery against the infant for use and occupancy. The motion to dismiss the petition for use and occupancy as against the infant is therefore denied.

MARIA SEVIROLI'S INDIVIDUAL LIABILITY FOR USE AND OCCUPANCY


Maria Seviroli argues that she was not in possession of the premises in her individual capacity. She claims that as decedent's widow, the infant's mother, natural guardian and custodial parent, she originally became possessed of the premises as guardian in socage (Domestic Relations Law §80, 83; Kennedy v Smith, 117 Misc 237, reversed 204 App Div 628, aff'd 237 NY 516 [1923]). Ultimately, as guardian of the infant's property appointed by this court, she had a right to possession of the ward's property (Matter of Hynes, 105 NY 560 [1987]). Accordingly, it is claimed that she was never in possession of the premises in her individual capacity and petitioner has not stated a cause of action against her individually for the fair value of use and occupancy.

Respondent recognizes that an executor can, in a proper case, plead a cause of action against a residuary beneficiary tenant-in-common in possession for use and occupancy (Matter of Burstein, 153 Misc 518 [1934]); see, Limberg v Limberg, 281 NY 463 [1939]; Johnson v Depew, 38 AD2d 675 [1971]). Maria Seviroli argues that at the moment of death, the infant was seized with title to the premises as a 30% tenant-in-common with the other residuary beneficiaries [*3](Waxon Realty Corp. v Rothschild, 255 NY 332 [1931]; Matter of Cunniff, 272 NY 89 [1936]). Mrs. Seviroli having the right and obligation to exclusive custody of her child and as guardian in socage, she was obligated to take possession of the premises on the infant's behalf (Domestic Relations Law §80). Therefore, it is asserted that there was but one possession of the premises; the infant, as tenant-in-common, was in possession through his guardian in socage and guardian of his property, his mother, who was rightfully in possession as a fiduciary for the infant (Foster v Foster, 71 Misc 263 [1911]); see, also, Knolls v Barnhardt, 71 NY 474 [1877]).

The executrix relies on the concept that the owner of real property is entitled to the reasonable value of the use and occupancy from the occupants of the premises (Real Property Actions and Proceedings Law §749[3]; Matter of Owens, 36 Misc 2d 1031 [1062]). Liability for use and occupancy to the estate may be in an heir who becomes a tenant-in-common upon death (Limberg v Limberg, 281 NY 463 [1939]).

The court's view is that a tenant-in-common who has such status by virtue of being a residuary beneficiary can be liable for use and occupancy. Nevertheless, that does not insulate other occupants from liability for use and occupancy (Nasti v Verderosa, 73 Misc 2d 479 [1973]). The power of the fiduciary to manage the decedent's real property and collects the rents carries no exception for the tenant in occupancy (EPTL 11-1.1[b][5][A]; Johnson v Depew, 38 AD2d 675 [1971]). It is an admitted fact that Maria Seviroli and her son occupied during the term in question. Accordingly, the spouse and the infant may be liable for use and occupancy. The motion to dismiss the petition for failure to state a cause of action against Maria Seviroli, individually, is denied.

FINDINGS OF FACT


The estate paid a total of $86,716.45 for expenses to maintain the premises from the period March 1, 2002 to August 31, 2004. These expenses included common charges, real estate taxes and insurance on the property. The court furthermore credits the testimony of Robert Kramer, a real estate broker with more than 32 years of experience in selling and renting real properties in Garden City, New York. He was clearly familiar with the Wyndham property in which decedent's condominium was located and had been a guest of the decedent in that very apartment. His expert opinion that the rental value of the apartment during the period of time was between $5,500.00 and $6,200.00 per month was credible. He testified further that a similar unit sold in early 2003 for $1,400,000.00.

CONCLUSIONS OF LAW


The reasonable and fair value for use and occupancy of these premises for the 30-month period respondents occupied is the rental value that the premises would have obtained on the open market (Real Property Law §601; Syracuse Associates v Touchette Corp., 73 AD2d 813 [1979]; see, generally, 74A NY Jur2d, Landlord and Tenant §830). Based upon the evidence adduced, the court finds that the unit had a market value of $1,400,000.00 during this period of time, that it incurred expenses in the sum of $86,716.45 over the period of time and the reasonable value for a monthly rent during the period in question was $5,500.00 per month. A reasonable period to occupy after the decedent's death is allowed. After the executrix's demand for use and occupancy on July 31, 2002, respondents were on notice that the fiduciary would seek possession or rent in the alternative. Respondents are, therefore, liable for use and occupancy of $5,500.00 per month from August 1, 2002 until August 31, 2004 plus interest on the monthly sums due of 3% per annum. For the reasons previously indicated both respondents, Maria Seviroli, individually and the infant, John Joseph Seviroli, are jointly and severally liable responsible for this sum determined to be the reasonable value of the use and occupancy of the premises (Real Property Actions and Proceedings Law §741[5], 749[3]; Ministers, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York v 198 Broadway, Inc., 152 Misc 2d 936 [1991]).

The application for attorney's fees, costs and disbursements are denied. [*4]

Settle decree on notice.

Dated: December 20, 2004

JOHN B. RIORDAN

Judge of the

Surrogate's Court