During the pendency of a probate proceeding in this court, a Supreme Court partition action commenced by the decedent's surviving spouse seeking, inter alia, a declaration that the decedent's interest in certain real property passed to him by operation of law at her death was dismissed by the Supreme Court on the grounds that the real property at issue was devised in the decedent's propounded will in a different manner and that the dismissal was without prejudice as this court was the appropriate forum to determine the respective ownership claims to the realty. Apparently the disputed interest in realty is the only potential asset of the testamentary estate, so if the spouse is successful, there is no practical reason to proceed to probate the propounded instrument.

The spouse now moves for summary judgment under CPLR 3212 seeking a declaration that the decedent's interest in premises 2426 St. Raymond Avenue, Bronx, New York, passed to him by operation of law pursuant to a deed dated January 30, 1995. The deed lists the grantees as "GILBERTO HERNANDEZ and CONSOLACION HERNANDEZ, HIS WIFE ... AND ERLINDA QUE and ELPIDIO RODRIGUEZ, HER HUSBAND ..." Consolacion is the decedent's sister. In the propounded will the decedent purports to devise her "half share and interest in the real property located and known as 2426 St. Raymond Avenue " to the decedent's sister and the decedent's spouse in equal shares. The co-tenants of the realty (the sister and her spouse) and the nominated executor oppose the application. They contend that the decedent's interest in the premises is held as a tenant in common and passes under the will. Consequently, they assert that one-eighth of the property passes under the will to the decedent's sister and one-eighth to the decedent's spouse.

The decedent died on December 16, 2000 survived by her spouse, Elpidio Rodriguez, as her sole distributee. The amended probate petition lists the realty as the only testamentary asset. It appears that unless the decedent's interest under the deed was a one-quarter tenant in common interest, the decedent left nothing that passes under the will.

The spouse claims pursuant to the wording of the deed he and the decedent owned an [*2]undivided 50% interest in the premises as tenants by the entirety. Therefore, upon her death he became the owner of an undivided 50% share of the premises by operation of law. The spouse argues that (1) a grant of real property to a husband and wife creates a tenancy by the entirety, unless expressly declared to be a joint tenancy or tenancy in common (EPTL § 6-2.2 [b]); (2) a tenancy by the entirety cannot be altered without the mutual consent of the spouses or a divorce; and (3) the provisions of a will cannot vary the transfer of ownership that occurs by operation of law.

In opposition the respondents contend that (1) on January 30, 1995 the premises was purchased by the decedent, her sister Consolacion, and their respective husbands, with the intent to hold title as tenants in common; (2) the deed does not contain language of joint ownership or survivorship; (3) in executing her will devising her share of the premises equally to her husband Elpidio Rodriguez and Consolacion Hernandez, the decedent reflected the intent to hold as tenants in common; (4) Consolacion Hernandez provided all of the consideration for the down payment and paid all the closing costs at the time of purchase in the approximate sum of $27,000.00; (5) Consolacion also paid for all renovations to the property in the estimated amount of $7,000.00; (6) since the language in the deed is ambiguous, the court should reconcile the inconsistency in light of the will and the surrounding circumstances; and (7) the court should find the movant has a 3/8 interest in the realty (1/4 as tenant in common under the deed and 1/8 under the will) less the aforementioned sums contributed by Consolacion Hernandez in the purchase and renovation of the realty.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (see Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The papers submitted in the summary judgment application are scrutinized in a light most favorable to the party opposing the motion (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).

Contrary to the respondents' argument, the deed is not ambiguous on its face. Pursuant to EPTL 6-2.2 (b) "a disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common" (see Bartholomew v Marshall, 257 App Div 1060 [1939]; see also Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 6-2.2). In the subject deed there is no express declaration indicating anything other than a conveyance to the decedent and her husband of one-half of the realty as tenants by the entirety. Tenancies by the entirety is different from both tenancies in common and a joint tenancy in that "it remains fixed and cannot be destroyed without the consent of both parties" for "as long as the marriage remains legally intact," with both parties continuing "to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse's [*3]coextensive interest in the property" (V.R.W., Inc. v Klein, 68 NY2d 560, 564 [1986]). In light of the fact that by operation of law the death of one of the tenants by the entirety results in that tenant no longer having an interest in the property, "a severance of a tenancy by the entirety cannot be effectuated by the unilateral last will of one of the spouses alone" (Matter of Strong, 171 Misc 445, 451 [1939]).

Accordingly, the motion for summary judgment is granted to the extent that Epilido Rodriguez is declared to be the owner of a 50% interest in the subject premises. The issue of the right of the sister to credits for certain payments is not before the court in this motion, and, in any event, there appear to be factual issues with respect to this issue.

Settle order granting summary judgment in accordance with this decision.

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SURROGATE