New York Probate and Estate Administration Lawyer Blog
The plaintiffs have started this action seeking a declaration that they are the rightful owners of a premise. They further seek a declaration that they gained the title of the premise by an adverse possession and they permanently enjoin the defendant from evicting them from the premises. A temporary restraining order was issued by this court enjoining the defendant from proceeding with their previous holdover proceeding pending a hearing in this matter.
Plaintiffs Argument
A New York Probate Lawyer said to support their case the plaintiffs submit an affidavit that contains the following allegations: all of the alleged property was bequeathed to the plaintiffs and the plaintiffs have lived at the subject premises for more than 40 years. They have paid all of the taxes for the property, as well as all other charges as well as the insurance for the premises.
In further support of their case the plaintiffs issue a mortgage memorandum and closing statement from Home Title Insurance Company from 1932, as well as the last will and testament of the previous owners that left the premises to them.
Defendants Argument
The defendant opposed this order stating that they were only served with a summons and complaint and were not served with an order to show cause in the matter. The defendant further argues that the deed has been passed through several heirs and that a warranty deed from the 11th of January, 2005 shows the premises are partially owned by them.
The defendant has also issued a verified answer seeking a declaratory judgment quieting the title to the premises, a judgment of eviction, damages for trespass, and a judgment to permanently enjoy the plaintiffs or their successors from interfering with the defendants use and enjoyment of the property.
Court Discussion and Decision
The plaintiffs have clearly explained their relationship with the decedent who left the property to them in his will. The deed provided by the defendant shows that half of the property was owned by another decedent and that there was no right to survivorship for the property.
Brooklyn Probate Lawyers said it is not disputed by the plaintiffs that the will of the decedent that left them the property has not been through probate. In cases where real property is left it is necessary to admit a will to probate in order for the property to be fully handed over to the benefactors.
Long Island Probate Lawyers said based upon all of the evidence that has been submitted in this case the court is ordering the plaintiffs to show cause for an order to remove the holdover proceeding taking place in another court. The holdover proceeding will be moved to this court for a joint trial in the matter. The clerk of the civil court of Queens County is directed to deliver the papers from that proceeding to the clerk of this court. The order to show cause by the plaintiffs for an order to enjoin the defendant from prosecuting the holdover proceeding pending a determination of this action is granted. The plaintiffs are directed to pay $500 within 45 days of being delivered this order.
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