In this contested accounting proceeding, the voluntary administratrix, the decedent's sister, seeks to recover the sum of $12,228.61 from Riverbay Corporation, the Mitchell-Lama cooperative housing corporation in which the decedent owned shares and resided pursuant to a proprietary lease. Riverbay deducted the sum at issue for alleged unpaid carrying charges in computing the estate's equity in the apartment. The administratrix contends that Riverbay should have evicted the administratrix' daughter for the daughter's failure to pay the carrying charges owed pursuant to the lease. Although the decedent's only other distributee, his brother, has filed objections to the account, he supports the instant application. Riverbay opposes the application. All of the parties have agreed to treat the application as a motion for summary judgment.

Although the decedent died on April 28, 2001, her occupancy agreement ran until August 31, 2003. On March 4, 1999, the decedent filled out a form on which she indicated that she was adding her niece as an occupant of the apartment. The administratrix contends that this was an attempt to add the niece to the proprietary lease so that the apartment would pass to the niece by right of succession after the decedent's death. On June 19, 2002, the niece requested that the corporation grant her succession rights to the apartment and allow her to remain as a tenant-cooperator. Riverbay sent the niece a written notice, dated June 20, 2002, denying her application. The niece appealed the denial of her succession application to the Division of Housing and Community Renewal ("DHCR") and Riverbay took no action while the appeal was pending. However, when DHCR denied the appeal by order dated May 7, 2003, Riverbay served the "Ten (10) Day Notice of Termination," dated June 10, 2003 upon the administratrix and also commenced a holdover proceeding against the estate for permitting an illegal occupant to reside in the apartment. The apartment was surrendered to Riverbay in August 2003.

Riverbay deducted the alleged unpaid carrying charges in the sum of $12,228.51 in computing the estate's equity in the apartment. There appears to be some dispute with regard to whether the niece was residing in the apartment from the date of the decedent's death or whether her [*2]occupancy commenced a few months thereafter. There also appears to be a dispute with regard to whether the niece paid a portion of the alleged unpaid carrying charges.

The principal disagreement between the parties is with regard to whether the administratrix had the status to institute any proceeding against her daughter. The administratrix maintains that Riverbay was the only party who had standing under its rules to commence the eviction proceeding. Therefore, it should have instituted eviction proceedings on the grounds that the daughter lacked succession rights to the apartment and did not pay the monthly carrying charges. The administratrix does not cite any law in support of her contentions.

Riverbay contends that the administratrix is seeking to recover from it for her own failure to take any action against her daughter for having occupied the premises without making payments for her occupancy to either the estate or Riverbay. The court agrees. Although the administratrix alleges that she told her daughter to move out of the apartment when she learned that the succession application had been denied, she never took any action against her daughter nor did she ever request that Riverbay take any action against her. Inasmuch as "the leasehold was the property of the decedent and thus, became part of decedent's estate," the fiduciary of the decedent's estate may maintain a summary proceeding to evict the tenant either for non-payment or as a licensee whose license has been revoked (Young v. Carruth, 89 AD2d 466 [1982]). The administratrix cannot recover on behalf of the estate for Riverbay's failure to do that which she could have done herself.

For the reasons stated above, the administratrix' request for summary judgment is denied. However, summary judgment cannot be granted in favor of Riverbay because there remains an issue as to whether Riverbay was paid any portion of the $12,228.61 in carrying charges that it deducted from the estate's equity in the apartment. This issue as well as the other issues raised in the accounting proceeding are to be discussed at a pre-trial conference to be held on April 18, 2005 at 9:30 a.m. Respective counsel, familiar with the issues, shall attend the conference. This decision constitutes the order of the court. The Chief Clerk shall mail a copy of this decision and order to all of the attorneys who have appeared.

Proceed accordingly.

SURROGATE