Estate of Hershkowitz v. Walker

[341] OPINION OF THE COURT Memorandum. Order unanimously reversed with $10 costs, and motion to vacate the default judgment, dismiss the petition and restore tenant to possession granted. The petitioner, an estate of a decedent who was a Florida domiciliary, commenced the instant holdover proceeding to recover possession of a cooperative apartment located within Kings County, New York. While the estate’s personal representatives were apparently duly appointed by a Florida court having jurisdiction over the estate, the estate’s personal representatives apparently did not obtain ancillary letters from New York appointing them as ancillary fiduciaries (see, SCPA 206 [1]; 1602 [1]; 1607, 1610 [1]). Inasmuch as an estate is not a legal entity, and any action by an estate must be by an executor or administrator in his representative capacity (Estate of Fenton v Rich, NYLJ, Apr. 2, 2001, at 34, col 6 [App Term, 2d & 11th Jud Dists]; 100 W. 72nd St. Assoc. v Murphy, 144 Misc 2d 1036; see, EPTL 11-3.1) and this proceeding was not brought by an executor or administrator duly authorized to act within New York, and none has been made a party, tenant’s motion to vacate the default judgment, dismiss the petition and restore her to possession should have been granted. Patterson, J.P., Golia and Rios, JJ., concur.