In this pending proceeding to judicially settle the account of the administrator, the decedent’s son, the administrator seeks by order to show cause leave pursuant to SCPA article 19 to sell the decedent’s interest in the realty located at 3325 Hone Avenue, in the Bronx, as well as an order ejecting the decedent’s grandson, Frank Jenkins, from the realty. The objectant in the accounting proceeding, the decedent’s granddaughter, Jenecie, supports the application as does another granddaughter, Lorena A. Jenkins (also known as Lorena Hiraldo) as the title co-tenant of the realty. However, Frank opposes the sale primarily on the basis that he wishes to purchase the realty and annexes to his opposition papers a “pre qualification loan letter” which would enable him to purchase the realty for a purchase price of $455,000, if the loan is extended. This amount is less than the contract price and of course, the administrator and the granddaughters urge the court to permit the sale to go forward else risk losing the sale. The decedent died on August 18, 2006 owning several parcels of realty. Letters of administration issued to her son on June 12, 2007. Thereafter, Jenecie commenced a compulsory accounting proceeding in October, 2015 not only seeking an accounting for almost a decade of stagnation, but more importantly for payment of her distributive share. The relief requested by the administrator is in essence an SCPA 1902 application to sell realty in order to pay administration expenses and effectuate distribution to the distributees. The courts have liberally granted SCPA 1902 (1), (6) and (7) applications to sell realty over the objections of some of the co-tenants in common who derived their interest in the realty from the decedent, provided that there is a sufficient nexus between the relief requested and the administration of the decedent’s estate (see Matter of DiNapoli, 210 AD2d 42 [1st Dept 1994], Iv denied 85 NY2d 804 [1995] [granting the administrator's SCPA 1902 (6) application, over objections by decedent's son who was residing at the premises, where the financial condition of the estate was deteriorating, thus requiring that the realty be sold so that a meaningful distribution could be effected]; see also, Matter of Lynch, 80 AD2d 959 [3rd Dept 1981], Iv denied 53 NY2d 606 [1981] [granting the administrator's SCPA 1902 (6) application even though 18 years had elapsed after the decedent's death, over the objections of the heirs of a post-deceased child, on the ground that the estate will be served best by the proposed sale and to avoid the expense of a partition]. The facts giving rise to the application are squarely on point with the preceding cited cases. Jenecie has been seeking a distribution for over 5 years in an estate that has not been administered 14 years after the death of the decedent. She is entitled to her distributive share and this estate must be fully administered. Although the court is sympathetic with Frank’s desire to purchase the realty, the court cannot countenance that sympathy with the reality that he does not have the means to do so. The court notes this application was originally returnable on March 20, 2020, and due to the Covid-related shutdown of the courts, this matter was administratively adjourned several times. In the interim a member of the court’s Law Department had an initial conference with the parties d this application with the parties, in essence providing Frank with an opportunity to finalize the loan commitment. On the last conference held virtually, Frank’s counsel indicated his client was not able to secure the loan. To delay the sale runs the risk of losing the opportunity to fully administer this estate. This the court cannot permit. Accordingly, the application is granted and petitioner is directed to settle an order, inter alia, permitting the sale of the realty in accord with the proposed contract terms; directing Frank to vacate the premises within 30 days of the entry of the order, and if he fails to do so, his ejectment from the premises. A warrant of ejectment may issue forthwith, with execution stayed for the 30 day period to permit Frank’s voluntary vacatur. Settle order Dated: October 8, 2020
