The Second Department, reversing Supreme Court, determined the partition action by a party holding 50% ownership of real property formerly owned by decedent should not have been dismissed based on the appointment of an administrator for decedent’s estate. Decedent died intestate. His interest in the real property passed to the distributees upon his death and is therefore not part of the estate:
… [T]he decedent died intestate, possessed of the subject property, and leaving six distributees who became owners of the subject property as tenants in common at the time of the decedent’s death. In its complaint, LCD Holdings alleged that it had acquired a 50% interest in the subject property from deeds given by and through certain of those distributees, with the defendants—the decedent’s remaining distributees—holding the other 50% interest. Consequently, the subject property is not part of the administrable estate … . Under such circumstances, LCD Holding, as the alleged holder of a 50% interest in the subject property as a tenant in common with the defendants, had the right to maintain this action for the partition and sale of the subject property in the Supreme Court, Kings County (see RPAPL 901 … ). Accordingly, the court erred in, sua sponte, directing dismissal of the action without prejudice to the commencement of a proceeding for the same relief in the in Surrogate’s Court … . LCD Holding Corp. v Powell-Allen, 2022 NY Slip Op 01447, Second Dept 3-9-22
Practice Point: When a real-property owner dies intestate, the decedent’s interest in the property immediately passes outside the estate to the distributees as tenants in common. Here the partition action by one of the tenants in common should not have been dismissed when an administrator of the estate was appointed because the real property was not part of the administrable estate.