Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) and Memoranda of Law Annexed 1-3, 4-6 Opposing Affidavits (Affirmations) and Memoranda of Law 5-6, 7-8 Reply Affidavits (Affirmations) and Memoranda of Law 7-8, 9 DECISION/ORDER Upon the foregoing papers, plaintiffs move in motion sequence 3, for an order, pursuant to CPLR §3212, granting them summary judgment on their amended complaint. Plaintiffs also move, pursuant to CPLR §§3211(a)(1), 3211(a)(7) and 3211(b), for an order dismissing defendant’s counterclaim and affirmative defenses asserted in their second amended answer with prejudice. As an alternative to dismissal, plaintiffs move to sever defendant’s counterclaim. Defendant moves in motion sequence 4 (cross motion), for an order, granting defendant leave to serve an amended answer pursuant to CPLR §3025(b). Upon leave being granted, pursuant to RPAPL §993(3)(b), defendant moves for an order finding that the real property that is the subject of this action for partition (2169 Coney Island Avenue, Brooklyn, NY (Block 6817, Lot 68)) (hereinafter “property”) constitutes “heirs property.” Defendant also moves, pursuant to RPAPL §993(7)(a), for an order notifying all parties of plaintiffs’ one-third interest in the property, and of defendant’s right of first refusal to plaintiffs’ partition by sale. Defendant moves, pursuant to RPAPL §993(5), for an order notifying the parties of the time and date of a settlement conference, the purpose of the conference, and the requirements of RPAPL §993. Background Plaintiffs commenced this action to partition real property located at 2169 Coney Island Avenue, Brooklyn, NY on August 19, 2019 (Summons & Complaint, NYSCEF #1). Ms. Judith Lindenberg, owner of one-third of the property passed away on May 8, 2018 (Amended Complaint 8, annexed as exhibit A to plaintiffs’ motion papers). Plaintiffs are Ms. Lindenberg’s brother and sister, and defendant is a part-owner of the property (Id. at 13, 27). The original complaint indicates that plaintiffs inherited decedent’s interest in the property pursuant to her last will and testament (Complaint 12). On November 13, 2019, the Queens County Surrogate’s Court revoked Judith Lindenberg’s will (Queens County Surrogate’s Court Order dated November 13, 2019, Exhibit I to plaintiffs’ motion papers). On January 22, 2020, the Court granted plaintiffs’ motion for leave to amend their complaint pursuant to CPLR §3025(b) to delete any reference to a will, indicating that the laws of intestate succession govern whether the plaintiffs have any interest in the property (NYSCEF #28). The amended complaint states that upon her death, Ms. Lindenberg’s interest in the property “vested by operation of law upon plaintiffs equally” (Amended Complaint 20; see also EPTL §4 1.1(a)(5)). The amended complaint contains three causes of action: (1) for a declaratory judgment that the plaintiffs are “jointly 1/3 owners of the property as tenants-in-common,” (2) for partition and sale of the property, and (3) for an equitable accounting (Amended Complaint at 4-5). Defendant filed an answer claiming that it lacked knowledge as to whether the plaintiffs hold an interest in the property, and defendant also included affirmative defenses and a counterclaim for prima facie tort alleging that plaintiffs knew that the former executor was attempting to probate a fraudulent will (Answer to Amended Complaint with Counterclaim
8, 59, annexed as exhibit F to plaintiffs’ motion papers). In its proposed amended answer, defendant has removed most of its affirmative defenses, but has added affirmative defenses for unclean hands, for contribution, set-off, and recoupment, and that the relief is barred by RPAPL §993 (Proposed Amended Answer to Amended Complaint with Counterclaim
