ESTATE OF HERSHKOWITZ v. WALKER

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Supreme Court, Appellate Term, New York,

ESTATE OF Murray HERSHKOWITZ, Respondent, v. Evelyn WALKER, Also Known as Everlina Walker, Appellant.

Decided: May 17, 2002

Present:  PATTERSON, J.P., GOLIA and RIOS, JJ. Patrick J. Leddy, New York City, for appellant. Joel S. Charleston, North Woodmere, for respondent.

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, April 2, 2001 [App Term, 2d & 11th Jud Dists];  100 W. 72nd St. Assocs. v. Murphy, 144 Misc.2d 1036, 545 N.Y.S.2d 901;  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.

MEMORANDUM.