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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Vito H. LUONGO, Deceased. Robert J. Luongo, Petitioner; Alice Jane Zaidins, Respondent.

Decided: January 26, 1998

Before O'BRIEN, J.P., and PIZZUTO, FRIEDMANN and KRAUSMAN, JJ. Gregg R. Fishman, New York City, for Petitioner.

Proceeding pursuant to CPLR 3222 upon an agreed statement of facts for a judgment determining that the decedent's estate should be distributed to his descendants on a per capita basis.

ADJUDGED that the decedent's estate should be distributed on a per capita basis, in equal shares of one-sixth each to Alice Jane Zaidins, Palma Luongo Fiore Ivy, Angela Jones, Robert J. Luongo, Robert F. Luongo, and Vincent Luongo, Jr., with costs to the petitioner payable by Alice Jane Zaidins personally.

The decedent, Vito H. Luongo, died intestate in March 1992 and left no surviving spouse, issue, parents, siblings, or grandparents.   The only distributees are six nieces and nephews.   The administrator of the estate proposed to distribute the estate in six equal shares.   However, one of the nieces, the respondent Alice Jane Zaidins, contended that she was entitled to one-fourth of the estate, based on the share her parent would have received if living.

 The decedent died prior to September 1, 1992, the effective date of the 1992 amendments to the EPTL (see, L.1992, ch. 595).   Therefore, the distribution of the decedent's estate is governed by the former provisions of the statute (see, Matter of Malavase, 133 A.D.2d 759, 520 N.Y.S.2d 49;  2 Rohan, N.Y. Civ. Prac., EPTL, ¶ 4-1.1[2] ).   Where, as here, all of the distributees are equal in consanguinity to the decedent, they are entitled to equal shares of the estate (see, former EPTL 4-1.1[b];  2-1.2;  Matter of Samson, 257 N.Y. 358, 178 N.E. 557;  Matter of McKeon, 25 Misc.2d 850, 199 N.Y.S.2d 158;  Matter of Strohmer, 149 Misc. 219, 266 N.Y.S. 886).  Accordingly, the administrator properly determined that the estate should be distributed to the descendants in equal one-sixth shares.


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