Opinion
322635.
Decided February 26, 2004.
This is a motion for an order granting summary judgment. More specifically, petitioner seeks summary judgment against respondent, Maria Seviroli, in the sum of $93,750 for use and occupancy, granting a judgment of possession and issuing a warrant of eviction directing the sheriff to evict the respondent and her son John Joseph Seviroli, and all persons occupying the premises at 100 Hilton Avenue, Apartment E902, Garden City, New York.
The decedent Joseph Seviroli died on February 21, 2002, survived by a spouse, Maria Seviroli, an infant son, John Joseph Seviroli, and two children from a prior marriage, Marie Beau and Joseph Seviroli, Jr. His last will and testament was admitted to probate by a decree of this court dated July 8, 2002. Letters testamentary issued to petitioner, Frances Kaszuba, decedent's sister.
The petition seeks to evict Maria Seviroli and John Joseph Seviroli from a condominium apartment located at 100 Hilton Avenue, Apt. E902, Garden City, New York. The condominium is an asset of the estate valued by the executor at approximately one million dollars. It is not specifically devised under the Will. The Will gives the executor the power to sell real estate. The respondents continued to occupy the condominium after the death of the testator. The petition also seeks $5,000 per month for use and occupancy of the condominium from the date of decedent's death.
The spouse has filed a notice of election. A proceeding to determine the validity of Maria Seviroli's right of election is pending. It is being vigorously litigated on the issue of the binding effect of a prenuptial agreement. Moreover, an issue has been raised by the guardian ad litem as to whether John Joseph Seviroli is to receive a portion of the estate as an after-born child under EPTL 5-3.2.
The guardian ad litem appointed on behalf of John Joseph Seviroli has filed an answer to this petition. Maria Seviroli thereafter moved for an order dismissing the petition, both in her individual capacity and as guardian of the person and property of John Joseph Seviroli.
By decision/order dated December 5, 2002, the court determined that Maria Seviroli might have an interest adverse to that of the infant. The court directed the guardian ad litem to continue representation of the infant simultaneously with the guardian and counsel who have filed affidavits pursuant to SCPA 402(1).
By decision/order dated January 10, 2003 the court denied the motion for an order dismissing the petition and directed that an answer be filed. Maria Seviroli filed an answer.
Petitioner now moves for an order granting summary judgment. In support of the motion, petitioner states that the estate assets continue to be depleted by the cost of retaining the condominium at a rate of approximately $40,000 per year (maintenance, taxes and insurance). The executrix seeks to sell this asset of the estate.
In opposition to the motion, respondent contends that this proceeding should await resolution of other pending proceedings in this estate. She alleges that there is a Will postdating the Will admitted to probate which devises the condominium to her and/or the infant. The guardian ad litem has not taken a position on this motion.
As indicated above, there is a prenuptial agreement, the validity of which is being litigated, but the fact that the surviving spouse may have a right of election does not affect the right of the executrix to sell the condominium. Even if it is determined that the surviving spouse has a right of election, she is not entitled to receive any specific property. Further, the right of election does not confer upon the surviving spouse the right to possession of any specific real property ( Cassia v. Cassia, 125 Misc 2d 606). The right of election constitutes a right to receive a portion of the probate estate and testamentary substitutes to which the right attaches ( Matter of Neidich, NYLJ, June 22, 2000, at 36, col 3).
The infant, if successful in establishing a right to share in the estate under EPTL 5-3.2 would, to the extent feasible, recover the same interest in real property conferred upon other children (EPTL 5-3.2 [a][1] [B] [iv]). Here, the real property was not specifically devised but is part of the residuary estate. Under some circumstances a residuary beneficiary may have the right to elect to take real property in kind ( Hetzel v. Barber, 69 NY 1; Matter of Southwick, 127 AD2d 662, 663; Matter of Fello, 88 AD2d 600, aff'd 58 NY2d 999; see generally 41 NY Jur2d, Decedent's Estates, § 1471). However, here the guardian ad litem appointed to represent the interests of the infant beneficiary has not attempted to assert such election.
Clearly then, the executor has the right to sell the condominium. Additionally, she has a duty to prevent the wasting of assets ( Matter of Bismarck, 99 AD2d 831) which the continued maintenance of the condominium may represent.
Despite her allegations regarding another Will, Maria Seviroli has failed to produce evidence of a Will which postdates the instrument admitted to probate. The hope of discovering some evidence during further disclosure is insufficient to defeat a motion for summary judgment ( David B. v. Millar, 2 AD3d 763).
In response to movant's showing of its prima facie entitlement to summary judgment, Maria Seviroli has failed to raise a triable issue of fact ( SFR Funding, Inc. v. Adria Operating Corp., 308 AD2d 484), warranting the granting of summary judgment to the estate on the issue of possession. There is no allegation that Maria Seviroli cannot afford alternative housing.
The estate also seeks payment in the sum of $93,750.00 from the spouse for use and occupancy of the condominium. The reasonable value of use and occupancy is an issue of fact which precludes summary judgment on that issue ( Krieger v. Cohen, 247 AD2d 587). The parties are directed to comply with 22 NYCRR 207.29.
Accordingly, the motion for summary judgment is granted to the extent of an award of possession to the petitioner together with a warrant of eviction. Respondent is granted a 90-day stay of execution of the warrant of eviction. In all other respects the motion for summary judgment is denied at this time.
Maria Seviroli's motion to relieve her of the limitations on use of, or reference to the terms of certain confidential information referred to in a so-ordered stipulation dated June 28, 2003 to supplement her opposition to the summary judgment motion is necessarily denied. The Court is not persuaded that the liquidity of the estate or its tax liabilities have any relevance to the present relief requested.
Settle order on five days' notice with five additional days if service is made by mail.