156 v. CLEO GATES FREDERICK GREGORY SR EVA PENNINGTON SARA HIRSHFIELD (2026)

The following electronically filed documents were read on this motion by plaintiff pursuant to CPLR 3212 for summary judgment and pursuant to CPLR 3001 for declaratory judgment, and on cross-motion by defendants for summary judgment:

Papers Numbered

Notice of Motion-Affirmation-Affidavit-Exhibits EF 25-35

Affirmations in Opposition-Exhibits-Memorandum EF 37-47

Affirmation in Reply EF 48

Upon the foregoing papers, the motion is determined as follows:

This motion for summary judgment arises from an action by plaintiff to partition real property, located at 26-31 96th st, East Elmhurst, NY 11369. Said property was deeded to five siblings in 1985, Elvira P. Blissett (30%), Dorothy M. Pennington (30%), James Pennington (30%), Cleo Gates (5%), and John O. Pennington (5%) (see NYSCEF Doc No. 29). According to plaintiff, all five siblings are now deceased and Elvira Blissett, having predeceased the others, left her interest in the property to the surviving siblings divided equally. Plaintiff further avers that the interest of Cleo Gates is in the possession of her estate and that of John O. Pennington is in the possession of his wife's estate, whom he predeceased. Plaintiff also contends, upon information and belief, that "Dorothy P. Mitchum's" interest passed entirely to Donna Berger-Jackson, who then conveyed her interest to Ronica Lynn Mitchum (see NYSCEF Doc No. 31).¹ Again, according to plaintiff, and not based on any documentary evidence, James Pennington died in 2012, leaving his interest to his sole heir, Renee P. Hirshfield. In December 2016, Renee conveyed her interest in the subject property to plaintiff in exchange for a deposit of $10,000 and a promise of a future payment of $90,000 upon clearing title.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Laffey Fine Homes of NY, LLC v 7 Cowpath, LLC, 210 AD3d 974, 975 [2d Dept 2022] [internal quotation marks, brackets and citations omitted]). "A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (RPAPL 901 [1]). However, this is not true of co-tenants of an "heirs property" which is subject to certain requirements and restrictions pursuant to recent legislation (see RPAPL 993).

In 2019, New York State adopted the "Uniform Partition of Heirs Property Act" (hereinafter the "Act") in response to the use of the partition law "by speculators to target homes owned in tenancy in common and occupied by low-income residents in gentrifying minority neighborhoods" (Report on Legislation by the Commercial Law and Uniform State Laws Committee, the Housing and Urban Development Committee, and the Pro Bono and Legal Services Committee, Bill Jacket, L 2019, ch 596 at 13). The Act recognized that many homeowners in such neighborhoods "find themselves in a precarious position because housing expenses, such as property taxes and insurance rates, have outpaced income growth" leaving them "asset rich but income poor" (id. at 15). "As a result of these factors, tenants in common who own urban heirs property are particularly vulnerable to opportunistic, or even predatory, practices by real estate developers or speculators" (id.). Specifically, the Act sought to curtail the practice of speculators inducing a single co-tenant to sell a minority interest enabling the buyer to commence a partition action, usually resulting in a partition by sale (Laurelton Estates, LLC v Prince, 247 AD3d 19, 28 [2d Dept 2025]). "Because the co-tenant owner families were often land-rich but cash-poor and unable to use their co-tenancy interests to secure a loan to make a competitive bid, the speculator who commenced the partition action was often the only bidder, acquiring the entire property for a fraction of its value" and depriving cotenants of the fair market value of their inheritance (Report on Legislation by the Commercial Law and Uniform State Laws Committee, the Housing and Urban Development Committee, and the Pro Bono and Legal Services Committee, Bill Jacket, L 2019, ch 596 at 13).

To protect co-tenants of heirs properties, the Act, as it read in 2019 prior to amendments after the commencement of this action, required a settlement conference between the co-tenants, a neutral determination of value, a right of first refusal by a petitioner's co-tenants to a buyout, partition in kind rather than by sale if feasible, and certain further requirements as to how a sale must be conducted if a partition by sale proceeds (see RPAPL 993 [5]-[8], [10]; Williams v Williams, 250 AD3d 592, 594 [1st Dept 2026]). A property qualifies as an "heirs property" and is subject to the above requirements if there is no agreement binding all co-tenants governing partition, any of the co-tenants acquired his or her interest from a relative, the property is used for residential or agricultural purposes, and, as relevant here, at least 20% of the interest in the property is held by an individual who acquired it from a relative (see RPAPL 993 [2] [e] [i]-[iv]).

As a threshold matter, the Court finds that the subject property is an heirs property that must meet the requirements of the Act. There is no agreement in the record binding the co-tenants on the issue of partition, at least one co-tenant acquired his or her interest from a relative, said interest represents 20% or more of the interests in the property, and the action was filed after the law went into effect on December 6, 2019 (see Williams v Williams, 250 AD3d at 594; Patcher v 3063 Brighton 8 Properties LLC, 69 Misc 3d 1201[A], 2020 NY Slip Op 51108[U], *5 [Sup Ct, Kings County 2020]).

Given the property's status as an heirs property, plaintiff has failed to meet its initial burden of demonstrating the absence of any material issue of fact. It offers no proof that a mandatory settlement conference took place, that its co-tenants were afforded their statutory right to first refusal, or, beyond its mere assertion, that a partition in kind is impracticable. This is in addition to the woefully inadequate papers accompanying the motion which fail to support almost any of plaintiff's claims as to the current ownership division of the subject property. Initially, there is no "Dorothy P. Mitchum" listed on any of the deeds submitted to the court and it is unclear who plaintiff is referencing when it claims such person was involved somewhere in the chain of title. Moreover, while plaintiff claims an interest in the property was supposedly left to Renee by John Pennington, the record is bereft of any evidence of such a devise. Finally, the court notes a further inconsistency in that plaintiff claims Renee had a 37.5% interest in the subject property whereas the promissory note claims a 50% interest (see NYSCEF Doc No. 38).

Based on the foregoing, plaintiff's motion for summary judgment and declaratory judgment is denied (see Williams v Williams, 250 AD3d at 594). Furthermore, given the failure to demonstrate, prima facie, the exact ownership interest plaintiff alleges it owns, and based upon the fact that the ownership interests devolving to the other four siblings' distributees or beneficiaries are completely unproven, the identity of the necessary parties here are uncertain. The current action is therefore stayed until a further determination and order has been rendered by the Surrogate's court or the Supreme Court of Queens County, brought pursuant to SCPA 2113, to determine the ownership interests of all parties involved in this action.

Defendants' affirmative claims for relief are denied for failure to file a notice of cross motion (see CPLR 2214 [a]; 22 NYCRR 202.7 [a]; Hope v Congregation Shaaray Tefila Glens Falls NY [CSTGFNY], 64 Misc 3d 1233[A], 2019 NY Slip Op 5134[U], *6 n 5 [Sup Ct, Warren County 2019]).

The parties' remaining contentions, to the extent not already addressed, have been considered and found to be without merit or rendered academic.

This constitutes the decision and order of the Court.

Dated: October 5, 2026

Hon. Peter J. Kelly, J.S.C.

FOOTNOTES

1.   No person named "Dorothy P. Mitchum" can be found on the 1985 deed conveying the property to the siblings.

Peter J. Kelly, J.