MASPETH PLACE CORP v. WALCOTT FRANCIS (2022)

Motion by Plaintiff for an order/judgment confirming the Referee's Report of Leticia Arzu, Esq., dated October 20, 2021 and for other related relief, and cross motion by Defendant rejecting the report of the Referee are consolidated and decided as follows:

This is a partition action wherein the Plaintiff, co-owner of certain real property known as 1242 College Avenue, Bronx New York, seeks partition and division of the subject property between the parties in accordance with their respective rights and interests, or in the alternative the sale of the property and division of the proceeds in the event that partition could not be made without great prejudice to the parties.

This action was commenced with the electronic filing of the Summons and Complaint with the Bronx County Clerk on January 27, 2020. Issue was joined by each of the individual Defendants. Defendant Commissioner of Social Services of the City of New York did not appear.

Since this action was commenced subsequent to the December 6, 2019 effective date of the Partition of Heirs Property Act, RPAPL § 993, the provisions of that statute are controlling.

Unlike partition actions brought under RPAPL § 915, the new statute provides certain protections and procedures which must be followed for those matters which are determined to be “Heirs Property”.

Heirs property under the Act is defined as real property held in tenancy in common, which satisfies all of the following requirements as of the filing of a partition action:

(i) there is no agreement in a record binding all of the co-tenants which governs the partition of the property;

(ii) any of the co-tenants acquired title from a relative, whether living or deceased; and

(iii) any of the following applies:

A. twenty percent or more of the interests are held by co-tenants who are relatives;

B. twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased;

C. twenty percent or more of the co-tenants are relatives of each other; or

D. any co-tenant who acquired title from a relative resides in the property.

In any partition action to partition real property, the court shall determine, after notice ․ whether the property is heirs property, and if so determined the property shall be apportioned in accordance with this statute, RPAPL§ 993(3)(b).

Further, the court is required to hold a settlement conference for the purpose of holding settlement discussions pertaining to the rights and obligations of the parties with respect to the subject property, RPAPL§ 993(5).

In this proceeding, these mandatory provisions have not yet been complied with.

Accordingly, Plaintiff's motion to confirm the Report of the Referee is denied. Defendant's cross motion to reject the Report of the Referee is granted to the extent of setting this matters down for a Virtual Settlement Conference on the Microsoft Teams platform before Special Referee Mary Lynn Dlabola to be held March 28, 2022 at 10:00 AM.

This constitutes the decision and order of the Court.

Adrian Armstrong, J.