The motion by plaintiff for partial summary judgment establishing his right to a 50% interest in the subject property is denied. The cross-motion by defendants for an order pursuant to RPAPL § 211 restraining plaintiff from the commission of any further waste upon the property located at 2426 St. Raymond Avenue in Bronx County is, likewise, denied.

Plaintiff asserts that summary judgment should be granted in his favor. He was married to Erlinda Que in January of 1995. On January 30, 1995, property was purchased at 2426 St. Raymond Avenue in Bronx County and title was held by defendant Gilberto Hernandez and Consolacion Hernandez, his wife and Erlinda Que and Elpidio Rodriguez, her husband. Plaintiff asserts that Erlinda Que passed away on December 16, 2000 and since plaintiff and his wife held the property as tenants by the entirety, upon the death of Erlinda Que, her interest transferred to plaintiff as a matter of law.

Defendants oppose the motion by plaintiff and assert that plaintiff's deceased wife, Erlinda Que, in her Last Will and Testament, bequeathed her half share of the property equally to her husband, the plaintiff, and defendant Consolacion Hernandez. Moreover, her will provided that Consolacion Hernandez must approve, in writing, any decision to sell said property. Therefore, defendants contend that plaintiff is entitled to a 3/8 share of the value of the property as is defendant Consolacion Hernandez. In addition, defendant Consolacion Hernandez provided all of the money for the down payment on the property including closing costs in the sum of $27,000 and she paid for all renovations made to the property in the approximate sum of $7,000. Defendants assert that if the property is partitioned and sold, she should receive credit for those payments. Defendants further contend that there is a probate proceeding pending in [*2]Surrogate Court in Bronx County as to the same issues raised in plaintiff's cause of action herein and Surrogate Court is the proper forum in which to determine this matter. Therefore, defendants assert that the instant matter should be dismissed in the interest of judicial economy.

Defendants also cross-move for an order restraining plaintiff from the commission of further waste on the subject property during the pendency of this action. Specifically, defendants assert that said property is a two-family house. Plaintiff lives in one apartment and the other apartment is vacant. Defendants assert that plaintiff has not allowed the defendants access to the vacant unit since June 2007 to repair and renovate it so that it can be rented out and generate an income. They argue that only plaintiff is benefitting from ownership of the premises and plaintiff's actions are a financial detriment to the defendants. Defendants further reiterate their position that the pending Surrogate's Court proceeding is the proper forum in which to determine this matter and, therefore, the instant action should be dismissed. Defendants would withdraw their application if this court determines that Surrogate's Court is the proper forum.

Plaintiff did not submit any papers in opposition to defendants' cross-motion or their request that the instant action be dismissed.

Plaintiff has not demonstrated his entitlement to summary judgment as a matter of law in that his deceased wife's last will and testament provided for a different apportionment of her share of the property upon her death. Since that is a matter currently being litigated in Surrogate's Court and it is the proper forum for determining the apportionment of the property, the motion and cross-motion are hereby denied and plaintiff's cause of action is hereby dismissed without prejudice as Surrogate's Court is the proper forum for this action.

Defendants are directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Dated June 20, 2008

J.S.C.