This is an action for a declaratory judgment quieting title, partition and sale, and an accounting. This action was tried before the Court without jury on November 12, 2024. Plaintiffs John W. Murphy and Kathleen Walters were represented at trial by Andrew S. Black, Esq., of Gelb & Black, P.C., 26 Court Street, Suite 2305, Brooklyn, NY 11242. Defendant William Murphy III ^[FN1] was represented by Lawrence Garvey, Esq., of Law Offices of Lawrence A. Garvey & Associates, P.C., 20 Squadron Boulevard, Suite 670, New City, NY 10956.

Having considered the allegations and proofs of Plaintiffs and Defendant — testimonial and documentary evidence — and due deliberation having been had thereon, the Court herein makes findings of fact, which are established by the preponderance of the credible evidence, and conclusions of law, as follows. This decision shall also constitute the decision on the parties' post-trial motions made on the record for respective directed verdicts.

1. The Plaintiffs herein are the hereinafter mentioned John W. Murphy, Sarah Carney (née Murphy), and Kathleen Walters (née Murphy), and the Defendant herein is the hereinafter [*2]mentioned William J. Murphy III.

2. On December 19, 2016, Plaintiffs commenced this action by filing a summons with notice with the County Clerk of Kings County.

3. On February 15, 2017, Plaintiffs filed a verified complaint.

4. On March 30, 2017, Defendant filed a verified answer.

5. The property which is the subject of this action is located at 99 Dikeman Street, Borough of Brooklyn, County of Kings, in the State of New York ("the Property").

6. Sarah Murphy (née Bennett) was deeded the Property on June 19, 1964, by her siblings and her, and at that time she was married to her husband, William J. Murphy, also known and referred to hereinafter as William J. Murphy Sr.

7. Sarah Murphy (née Bennett) and William J. Murphy Sr. produced four children whose names presently are John W. Murphy, Sarah Carney (née Murphy), Kathleen Walters (née Murphy), and William J. Murphy (also known and referred to hereinafter as William J. Murphy Jr.).

8. Neither Sarah Murphy (née Bennett) nor William J. Murphy Sr. had any other children.

9. Sarah Murphy (née Bennett) died intestate on June 14, 1975, and she was survived by the following heirs: her husband William J. Murphy Sr. and her children John W. Murphy, Sarah Carney (née Murphy), Kathleen Walters (née Murphy), and William J. Murphy Jr.

10. William J. Murphy Sr. did not remarry and he died intestate on December 5, 1996, survived by the following heirs: John W. Murphy, Sarah Carney (née Murphy), Kathleen Walters (née Murphy), and William J. Murphy Jr.

11. At the time of William J. Murphy Sr.'s death, William J. Murphy Jr., his wife Virginia, and their children were residing on the property.

12. William J. Murphy Jr. died intestate on February 1, 1997, survived by the following heirs: his wife, Virginia Murphy, and their four sons, William J. Murphy III, Michael Murphy, Christopher Murphy, and Eric Murphy, as well as by two daughters from a prior marriage, Jennifer Murphy and Pamela Murphy.

13. Despite being aware of the pending litigation, siblings of William J. Murphy III have exhibited no interest in participating in the subject litigation.

14. On October 5, 1999, Virginia Murphy executed a quitclaim deed remising, releasing, and quitclaiming unto William J. Murphy III "all the right, title, interest and claim which Virginia Murphy had in and to" the Property.

15. William J. Murphy III lacked intent to commit fraud when he accepted the aforesaid quitclaim deed inasmuch as he was under the belief that his mother possessed the legal authority to [*3]issue him a deed.

16. Plaintiffs learned of the existence of the aforesaid quitclaim deed in 2016, when Virginia Murphy wanted to pass along documents concerning the Property to her sister-in-law Sarah Carney (née Murphy); and thereafter Plaintiffs commenced the within action.

17. William J. Murphy III has executed various mortgages from or around 2000 to or around 2015 purporting to encumber the Property; he did so at least in part to renovate the Property.

18. The Property, a two-floor family home of small size, is so circumstanced that partition alone cannot be made without great prejudice to those possessing an interest in it.

As per his post-trial memorandum of law, Defendant pursues as affirmative defenses claims of absence of necessary parties, lack of subject matter jurisdiction, and improper venue.

Defendant William J. Murphy III argues that his five siblings, Michael Murphy, Christopher Murphy, Eric Murphy (three full siblings), Jennifer Murphy, and Pamela Murphy (two half-siblings), are necessary parties if Plaintiffs were to be granted the relief sought herein.

Concerning partition actions, RPAPL § 903 provides in pertinent part as follows:

Each of the following persons shall be made a party to the action:

1. Every person having an undivided share, in possession or otherwise, in the property, as tenant in fee, for life, by the curtesy or for years;

2. Every person entitled to the reversion, remainder or inheritance of an undivided share, after the determination of a particular estate therein;

3. Every person who, by any contingency, is or may become entitled to a beneficial interest in an undivided share in the property, provided that where a future estate or interest is limited in any contingency to the persons who shall compose a certain class upon the happening of a future event, it shall be sufficient to make parties to the action the persons who would have been entitled to such estate or interest if such event had happened immediately before the commencement of the action;

CPLR 1001 provides:

(a) Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant.

(b) When joinder excused. When a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned. If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party. In determining whether to allow the action to proceed, the court shall consider:

1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder;

2. the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined;

3. whether and by whom prejudice might have been avoided or may in the future be avoided;

4. the feasibility of a protective provision by order of the court or in the judgment; and

5. whether an effective judgment may be rendered in the absence of the person who is not joined.

While Defendant William J. Murphy III's siblings, Michael Murphy, Christopher Murphy, Eric Murphy, Jennifer Murphy, and Pamela Murphy, will be affected by the outcome of this action, their interests will not be inequitably affected inasmuch as the Court is declaring that the aforementioned October 5, 1999 quitclaim deed did not transfer title to the entirety of the Premises to William J. Murphy III. In actuality, said siblings are benefiting from the outcome of this declaration in that the Court is declaring that they own an interest, albeit a trifling one, in the tenancy in common in the Property. Moreover, if any of these siblings declines rights to a share in the tenancy in common, he or she is free to renounce any interest. Meanwhile, despite at least some of them being aware of this litigation, none has sought to intervene.

Moreover, not every partition action requires joining as parties those who might enjoy an interest in real property previously owned by intestate decedents (see Bhola v Small, 31 AD3d 474 [2d Dept 2006]). In effect Plaintiffs herein are acting on behalf of the estates of their deceased parents, Sarah Murphy (née Bennett) and William J. Murphy Sr., in ensuring that the latter's descendants receive their fair interests in the Property.

As discussed below, the interest of each of Defendant William J. Murphy III's siblings is so miniscule such that their nonjoinder herein is legally irrelevant; each is entitled to a 2.0833% interest. "Under the de minimis doctrine 'the law does not concern itself with trifles' (see, 1 Am Jur 2d Actions § 67); 'the law does not care for, or take notice of, very small or trifling matters' (Black's Law Dictionary, 5th ed, p. 388)" (Matter of Staber v Fidler, 110 AD2d 38, 39 [2d Dept], affd 65 NY2d 529 [1985]).

The Court concludes that the absence of Defendant William J. Murphy III's siblings, Michael Murphy, Christopher Murphy, Eric Murphy, Jennifer Murphy, and Pamela Murphy, should not bar the relief to which Plaintiffs are entitled. Nothing would be gained by halting proceedings at this point. The interests of justice favor laying to rest the instant intrafamily dispute without delay. Each of the affected family members is entitled to their respective interest so that they can move on with [*4]their lives.

Therefore, the affirmative defense of lack of necessary parties is rejected. However, all parties herein are directed to provide notice of the instant action to Defendant William J. Murphy III's siblings, so as to afford them the opportunity to participate in the further proceedings to take place.

Defendant argues that this Court lacks subject matter jurisdiction — that jurisdiction lies within the Surrogate's Court. As has been stated,

"[T]he Supreme Court and the Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate" (Gaentner v Benkovich, 18 AD3d 424, 427 [2005]). "[A]s a general rule, 'in courts of concurrent jurisdiction of a particular subject matter the court first assuming jurisdiction should retain the action' " (id. at 428, quoting Zeglen v Zeglen, 150 AD2d 924, 925 [1989]). Contrary to the appellant's contention, the Supreme Court acted properly in deciding the appellant's motion instead of transferring it to the Surrogate's Court (see McGirr v Keesler, 273 App Div 778 [1947]; Brandt v Stowe, 20 Misc 2d 856, 858 [1959]; see also Ruiz v "Ruiz", 262 AD2d 392 [1999]). Moreover, the appellant never moved to transfer the action to the Surrogate's Court (see CPLR 325 [e]; Gaentner v Benkovich, 18 AD3d at 428). (Manning v Thorne, 73 AD3d 1136, 1136 [2d Dept 2010]; see Matter of Gopaul v New York City Employees' Retirement Sys., 122 AD3d 848 [2d Dept 2014].)

Article VI, § 7, subdivision a of the State Constitution provides: "The supreme court shall have general original jurisdiction in law and equity. . . ."

It is noted that Defendant never moved to transfer the within action to the Surrogate's Court. This action entailed determining who are the rightful owners as tenants in common of a single parcel of real property, and the Surrogate's Court need not be burdened with the instant dispute.

The vesting by descent of title to real property to distributees as tenants in common and a subsequent action for partition and sale is properly within the subject matter of the Supreme Court (see LCD Holding Corp. v Powell-Allen, 203 AD3d 811 [2d Dept. 2022]).

Therefore, the Court rejects the affirmative defense of lack of subject matter jurisdiction.

Defendant, who asserts improper venue, confuses it with lack of subject matter jurisdiction. "Venue, which is the place of a proceeding, does not involve the 'jurisdiction' of the court to hear and determine the action" (29 NY Jur 2d Courts & Judges § 937 [2025]). Here, the trial of this action properly took place in Kings County inasmuch as Defendant resides in it (see CPLR 503 [a]). Moreover, it is hornbook law that "improper venue is not a proper subject of an affirmative defense" (Koppell v Long Is. Socy. For the Prevention of Cruelty to Children, 163 Misc 2d 654 [Sup Ct, NY County 1994]; see 29 NY Jur 2d § 937).

Having rejected the affirmative defenses asserted by Defendant in his post-trial memorandum of law, the Court now proceeds to issue conclusions of law with respect to the causes of action for a declaratory judgment quieting title, partition and sale, and an accounting.

To the extent that Plaintiffs seek a declaration that the aforementioned quitclaim deed from Virginia Murphy to William J. Murphy III is void, this is denied. This conclusion is predicated on the Court's finding that William J. Murphy III lacked intent to commit fraud when he accepted the aforesaid quitclaim deed. However, the remainder of the causes of action with respect to quieting title requires adjudication.

"When a property owner dies intestate, title to real property automatically vests in his or her distributees as tenants in common (see U.S. Bank Trust, N.A. v Gedeon, 181 AD3d 745, 747 [2020]; Matter of Blango, 166 AD3d 767, 768 [2018]; Kraker v Roll, 100 AD2d 424, 429 [1984]). This vesting by descent occurs by operation of law at the time of the decedent's death, regardless of any failure to appoint an administrator or to file new deeds (see Kraker v Roll, 100 AD2d at 429), or, if an administrator is appointed, without the necessity for any act by the administrator (see Singer v Levine, 15 Misc 2d 785, 786-787 [Sup Ct, Kings County 1958])." (See LCD Holding Corp. v Powell-Allen, 203 AD3d at 812.)

When a person dies intestate leaving a spouse and children, the spouse inherits the first $50,000 plus half the balance of the estate and the children inherit the remainder by representation (see EPTL § 4-1.1). Therefore, when Sarah Murphy (née Bennett) died intestate on June 14, 1975, "title to the subject property automatically vested in her distributees as tenants in common" (Matter of Blango, 166 AD3d 767, 768 [2d Dept 2018]). Specifically, her husband William J. Murphy Sr. was vested with a 50% interest of the resulting tenancy in common in the Property, and her children John W. Murphy, Sarah Carney (née Murphy), Kathleen Walters (née Murphy), and William J. Murphy Jr. each were vested with a 12.5% interest therein.

When William J. Murphy Sr. died intestate on December 5, 1996, his 50% interest in the tenancy in common in the Property vested in his four legatees equally — each of his four children, John W. Murphy, Sarah Carney (née Murphy), Kathleen Walters (née Murphy), and William J. Murphy Jr. became vested with another 12.5% interest. In consequence thereof, at that point, John W. Murphy, Sarah Carney (née Murphy), Kathleen Walters (née Murphy), and William J. Murphy Jr. each were vested with a 25% interest in the Property.

When William J. Murphy Jr. died intestate on February 1, 1997, title to his 25% interest in the tenancy in common in the Property became vested in seven people. Virginia Murphy, his wife, became vested with 50% of the 25% interest possessed by him, i.e., 12.5%. The remaining 50% of William J. Murphy Jr.'s 25% interest became vested equally in his six children, William J. Murphy III, Michael Murphy, Christopher Murphy, Eric Murphy, Jennifer Murphy and Pamela Murphy, i.e., each became vested with a 2.0833% interest.

On October 5, 1999, when Virginia Murphy executed a quitclaim deed remising, releasing, and quitclaiming unto William J. Murphy III "all the right, title, interest and claim which Virginia Murphy had in and to" the Property, she could convey only the interest she had in the tenancy in common (see [*5]Matter of Blango, 166 AD3d 767), which was 12.5%.^[FN2] The quitclaim deed itself was not invalid (id.). Rather it conveyed Virginia Murphy's 12.5% interest to William J. Murphy III. Already possessing a 2.0833% interest, William J. Murphy III now became vested with a 14.5833% interest in the tenancy in common.

Presently, there exists a tenancy in common in the ownership of the Property, with the following people owning respective interests:

1. John W. Murphy owns a 25% interest in the tenancy in common.

2. Sarah Carney (née Murphy) owns a 25% interest in the tenancy in common.

3. Kathleen Walters (née Murphy) owns a 25% interest in the tenancy in common.

4. William J. Murphy III owns a 14.5833% interest in the tenancy in common.

5. Michael Murphy owns a 2.0833% interest in the tenancy in common.

6. Christopher Murphy owns a 2.0833% interest in the tenancy in common.

7. Eric Murphy owns a 2.0833% interest in the tenancy in common.

8. Jennifer Murphy owns a 2.0833% interest in the tenancy in common.

9. Pamela Murphy owns a 2.0833% interest in the tenancy in common.

Plaintiffs have established their entitlement to a declaratory judgment to the effect that title to the Property is vested in nine people in a tenancy in common, with John W. Murphy owning a 25% interest, Sarah Carney (née Murphy) owning a 25% interest, Kathleen Walters (née Murphy) owning a 25% interest, William J. Murphy III owning a 14.5833% interest, Michael Murphy owning a 2.0833% interest, Christopher Murphy owning a 2.0833% interest, Eric Murphy owning a 2.0833% interest, Jennifer Murphy owning a 2.0833% interest, and Pamela Murphy owning a 2.0833% interest. All this is subject, of course, to an accounting. A partition action is equitable in nature and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of the sale (see Berlin v Woljnarowski, 32 AD3d 810 [2d Dept 2006]; Freigang v Freigang, 256 AD2d 539, 540 [2d Dept 1998]).

Plaintiffs have also established their entitlement to a sale and an accounting (see Donlon v Diamico, 33 AD3d 841, 842 [2d Dept 2006]). Since the Property, a two-floor small family home, is so circumstanced that partition alone cannot be made without great prejudice to those possessing an interest in it, a sale under the direction of a referee must take place.

Following a post-trial conference to be had with the parties, the Court shall appoint a referee to hear and report on the taking of an accounting with respect to income, expenses, creditors, and liens. However, prior to the entry of an interlocutory judgment directing the sale at public auction, the Court is obligated to ensure that the accounting accurately reflects the income and expenses of the Property (see Colley v Romas, 50 AD3d 1338, 1340 [2d Dept 2008]), as well as whether there are any creditors with liens on the property (see RPAPL § 913).^[FN3] "[A]n accounting must be made of the income and expenses of the property, including but not limited to insurance costs, taxes, rents, and maintenance costs" (Donlon v Diamico, 33 AD3d at 842; see RPAPL § 231 [1], 911, 915). Following the accounting and based upon his or her findings, the referee shall report to the Court as to the right, share, and interest of each party in the property (see Clarke v Clarke, 227 AD3d 659 [2d Dept 2024]). The referee shall also report to the Court as to a minimum selling price after having obtained an independent appraisal of the Property (see Lauriello v Gallotta, 70 AD3d 1009 [2d Dept 2010]).

NOW, THEREFORE, it is hereby ORDERED as follows:

1. The parties shall cooperate in scheduling a post-trial conference to be held no later than November 20, 2025.

2. The parties shall inform their adversaries of the known addresses of Michael Murphy, Christopher Murphy, Eric Murphy, Jennifer Murphy, and Pamela Murphy no later than November 24, 2025.

3. No later than November 28, 2025, the parties shall serve upon Michael Murphy, Christopher Murphy, Eric Murphy, Jennifer Murphy, and Pamela Murphy, via first-class mail with postmarked certificate of mailing and certified mail return receipt requested, (a) a copy of the within decision and order, and (b) notice of status of the within action and that they may promptly move to intervene. Proof of service shall be filed no later than three days after service is made.

4. No later than December 3, 2025, Plaintiffs John W. Murphy and Kathleen Walters shall settle judgment by serving and submitting a proposed interlocutory judgment to the Court via filing on NYSCEF and email to the Court's law clerks. The said proposed interlocutory judgment shall reflect the determinations herein with respect to the existence of a tenancy in common in the Property and the respective interests of people in the tenancy in common subject to an accounting, and provide for the appointment of a referee (with a space for the insertion of a referee to be determined by the Court) to hear and report as to the taking of an accounting with respect to income and expenses (including but not limited to insurance costs, taxes, rents, and maintenance costs), creditors, and liens; as to the right, share, and interest of each person in the property following such accounting; as to a minimum selling price based upon an independent appraisal of the Property; and as to any other matters deemed necessary in order to implement the within decision of the Court.

5. No later than December 12, 2025, Defendant William J. Murphy III shall serve and submit a proposed counter-judgment to the Court via filing on NYSCEF and email to the Court's law clerks or an affirmation of no objection to the aforementioned proposed interlocutory judgment.