Proceeding to Discover Property Withheld from the Estate of Selma Kaufman, Deceased, Pursuant to SCPA 2103.
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354650/C
Novick & Associates
(For petitioner)
202 East Main Street, Suite 208
Huntington, NY 11743
Reilly & Reilly, LLP
(For respondent)
170 Old Country Road, Suite 308
Mineola, NY 11501
Edward W. McCarty III, J.
In this SCPA 2103 turnover proceeding, among the items of property sought to be recovered to the estate is a condominium apartment in Miami Beach, Florida. The petitioner, to whom limited letters of administration issued from this court, now moves the court for an order granting partial summary judgment declaring that the quitclaim deed conveying the property from the decedent to the respondent is invalid and the property must, therefore, be returned to the estate. The movant posits that Florida law requires that a deed be signed in the presence of two subscribing witnesses and that the two subscribing witnesses on the deed have unequivocally testified that they did not witness the decedent execute the deed. The motion is opposed.
What neither the movant nor the respondent has considered is whether the Surrogate's Court has subject matter jurisdiction to decide title to real property located in Florida. The court concludes that it does not.
"The Surrogate's Court has jurisdiction to determine controversies related to the affairs of the decedent (NY Cons Art VI sec 12 [d]; SCPA 201 [3])" Matter of Brand, 40 Misc 3d 1226 (A), [Sur Ct, Nassau County 2013). "For the Surrogate's Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate" (Matter of Piccione, 57 NY2d 278 [1982] citing Matter of Young, 80 Misc 2d 937, 939 [Sur Ct, New York County 1975]). However, "[i]ssues regarding the ownership and use of real property should be decided by the courts of, and in accordance [*2]with the laws of, the place where the real property is located" (Deutsch v Twersky, 96 AD3d 897, 897 [2d Dept 2012], citing Knox v Jones, 47 NY 389, 395 [1872]; Johnson v Dunbar, 114 NYS 2d 845, 849 [Sup Ct, Kings County 1952], affd, 282 App Div 720 [2d Dept 1953], affd, 306 NY 697 [1954]; Adriana Dev. Corp. N.V. v Gaspar, 81 AD2d 235, 239 [1st Dept 1981]).
Generally, if title to out-of-state real property is disputed and the court has personal jurisdiction over the parties, the court will only make a decision if there is fraud, breach of contract, or breach of trust. A court will not determine ownership of out-of-state real property "where a naked question of title is involved" (Johnson v Dunbar, 114 NYS2d 845, 849-850 [Sup Ct, Kings County 1952], affd, 282 App Div 720 [2d Dept 1953], affd, 306 NY 697 [1954]). A condominium is considered real property in Florida (Fla. Stat. § 718.106).
This case is similar to Deutsch v Twersky, where the real property in question was located in Romania. The parties disputed the validity of a deed conveying the real property. The court declined to decide and held that the issue must be decided in the place where the real property was located (Deutsch v Twersky, 96 AD3d 897, 897 [2d Dept 2012]).
This case is distinguishable from Matter of Carr (113 Misc 2d 818 [Sur Ct, New York County 1982), where the Surrogate's Court held it had jurisdiction to determine ownership of real property located out-of-state. In that case there were allegations of a breach of trust, placing the issue under the general rule cited in Johnson v Dunbar (114 NYS2d 845 [Sup Ct, Kings County 1952], affd, 282 App Div 720 [2d Dept 1953], affd, 306 NY 697 [1954]).
Florida law defines a condominium as real property (Fla. Stat. § 718.106), and this court is bound by the decisions of the Appellate Division, Second Department in Deutsch v Twersky (96 AD3d 897, 897 [2d Dept 2012]), and the New York State Court of Appeals in Johnson v Dunbar (306 NY 697 [1954]).
Accordingly, the petitioner's motion for summary judgment is denied and that branch of the petition seeking the return of real property situate in Florida to the estate is dismissed for lack of subject matter jurisdiction.
Dated: August 26, 2014
EDWARD W. McCARTY III
Judge of the
Surrogate's Court