Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the April 29, 2013 mailing of "Constructive Notice":

Adverse Possession vs. the Public


In an adverse possession action against an intestate decedent, the Queens County Surrogate has determined that known individuals alleged to be heirs need not be joined in the action. Kinard, et al. v. Rosenblatt, 2013 NY Slip Op 50617 (Surrogate's Court, Queens Cty., April 12, 2013).

Looking to the statutory powers of the Public Administrator (PA) under the EPTL and the Surrogate’s Court Procedure Act, the Court determined that the PA acting on behalf of the estate adequately protected the interests of putative heirs. Since the PA has the authority to take possession, manage and sell real property of the estate pursuant to EPTL 11-1.1, the Court reasoned that this authorization “necessarily invests in [the PA] the ability to defend [the property] against any encroachment or injury by others.” Further, the Court noted that SCPA 1123(2)(i)(1) permits the PA to “receive process as a necessary party ... where service of process or notice on behalf of any known or unknown person is directed by the court” and SCPA 1123(2)(i)(4) “provides that ... the public administrator may take such action in behalf of such person or persons as a person interested.” When these concepts are applied to the case at bar “the necessity to amend the complaint to specifically name and serve alleged distributees is, in this instance, unwarranted (see CPLR §1004).”


The decision has several loose ends. Initially, it seems that the Court unnecessarily implied an “ability to defend,” since EPTL 11-1.1(b)(13) explicitly authorizes fiduciaries to “contest” any claim in favor of or against the estate. Further, the permission to receive process given by SCPA 1123(2)(i)(1) only applies when service is “directed by the court.” There is nothing in the decision indicating that service upon any of the proposed additional defendants would need to be directed by the court. Most important, the decision creates tension between the perceived authority of the PA and the pleading requirements of RPAPL §1515(1)(d). That section requires the complaint “must set forth facts showing ... whether every person in being who would have been entitled to [an] estate or interest ... is named as a party” (emphasis supplied).

The result was one that none of the parties had advocated. The plaintiffs had moved for joinder of the additional parties pursuant to RPAPL §1511(2). The defendant Public Administrator had sought denial of the motion. It will be interesting to see if an appeal is sought, since neither party has much incentive to do so.