Order to Show Cause 1 Notice of Cross-Motion 2 Upon the foregoing papers, the application, by Order to Show Cause, of the Petitioner, Board of Managers of the Westbury Terrace Condominium, seeking injunctive and other relief relating to access and entry into 135 Post Avenue, Unit 3K, Westbury, New York, pursuant to Real Property Law Section 339-j, (Seq. #001) and the cross-motion of the Respondent, Nancy Hayes Ringen, as Surviving Spouse and Distributee at Law of John Ringen, Deceased, for an Order dismissing the instant Petition, (Seq. #002) are determined as set forth below.This is an action in which Petitioner, Board of Managers of the Westbury Terrace Condominium, seeks relief, on behalf of its unit owners and building occupants of 135 Post Road, Westbury, for entry to and remediation of Unit 3K (hereinafter “subject unit”), due to extensive water, smoke and fire damage that occurred as a result of a fire that transpired within the confines of this unit belonging to the now deceased Respondent, John Ringen, on February 20, 2018. Petitioner alleges in the Verified Petition that the deceased unit owner’s surviving spouse and distribute at law, Respondent, Nancy Ringen, has failed to permit access to the subject unit, including changing the locks of the subject unit, in order for Petitioner to perform necessary remediation within, to the detriment of the other unit owners.Petitioner contends, that pursuant to Article 16 of the condominium bylaws, a unit owner shall grant a right of access to the Petitioner “…for the purpose of correcting any condition originating in this unit and threatening another unit or a common element” and that Real Property Law Section 339-j provides that “[e]ach unit owner shall comply strictly with the by-laws and with rules, regulations resolutions and decisions adopted pursuant thereto.” Petitioner also contends that Article 5 of the condominium bylaws provided that in the event of damage or destruction of the building as a result of fire the Petitioner is obligated to arrange for prompt repair and restoration of the building including any damaged units.In support of its application, Petitioner submits, inter alia, a copy of the Petition, inclusive of copies of the by-laws and the procedures, rules and regulations of the amendments of the Westbury Terrace Condominium, 135 Post Avenue, and various correspondence directed to Respondent, Nancy Hayes Ringen (hereinafter “Nancy Ringen”), related to Petitioner’s requests to obtain access to the subject unit, along with the affirmation of the Petitioner’s attorney, Robert G. McDermott.The affirmation of the Petitioner’s attorney Robert. G. McDermott (hereinafter “McDermott”) states that Nancy Ringen, as well as her counsel, have been unresponsive to Petitioner’s requests to obtain access to the subject unit for remediation.In opposition and by cross-motion, Respondent contends that dismissal is appropriate as the instant Petition is premature based upon procedural irregularities wherein Respondent is not the titled owner of the subject unit and has not been appointed as Executrix of the Estate of the title owner of the subject unit, the decedent, John Ringen. Respondent contends that she is not qualified, nor has she taken possession of the assets of the estate.In support of its opposition and cross-motion, Respondent submits, inter alia, copies of the Respondent’s marriage registration to the decedent and the decedent’s deed, dated June 25, 1998 of sole ownership of the subject unit, along with copies of the decedent’s last will and testament, inter alia, leaving his entire estate to Nancy Ringen, the decedent’s death certificate, and Respondent’s Petition for Probate and Letter’s Testamentary, along with the affidavit of Nancy Ringen.In opposition to the cross-motion Petitioner contends that the subject unit passed to the Respondent Nancy Ringen upon the decedent’s death immediately by operation of law and regardless of receiving letters testamentary, Respondent has power to take action necessary to preserve part of the estate inherited therewith.“[A] plaintiff is unable to commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate” Laurenti v. Teatom, 210 A.D.2d 300, 301, 619 N.Y.S.2d 754 [2d Dept. 1994]. Furthermore, “no action may effectively be commenced against a dead person subsequent to his or her death and prior to the appointment of a personal representative” See, Arbalez v. Chun Kuei Wu, 18 AD3d 583, 795 N.Y.S.2d 327 [2d Dept 2005]; Laurenti v. Teatom, 210 A.D.2d 300, 619 N.Y.S.2d 754 [2d Dept 1994]. In as much as the Respondent has provided admissible proof that she has not been appointed representative of the decedent’s estate, and it is uncontested by the parties that Letters Testamentary have not been issued, Petitioner is unable to commence the instant Petition during the period between the death of the decedent John Ringen and the appointment of Respondent Nancy Ringen a representative of his estate.Accordingly, the application of the Petitioner (Seq. #001) is denied, and the Respondent’s cross-motion to dismiss the instant Petition (Seq. #002) is granted.This constitutes the decision and Order of this Court. Any relief not expressly granted herein is denied.November 13, 2018
