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In re Deans

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 1, 2009

IN THE MATTER OF LIVINGSTON MANDEL DEANS, DECEASED.
VALERIE GRAY, PETITIONER-RESPONDENT; FELIPE ORNER, ET AL., OBJECTANTS-RESPONDENTS; FIDELITY & DEPOSIT OF MARYLAND, RESPONDENT-RESPONDENT; REAL SPEC VENTURES, LLC, NONPARTY- APPELLANT. (FILE NO. 1415/02/A)

In a proceeding to settle the account of Valerie Gray as the former co-administrator of the Estate of Livingston Mandel Deans, nonparty Real Spec Ventures, LLC, appeals from so much of a decree of the Surrogate's Court, Queens County (Nahman, S.), dated September 30, 2008, as directed the cancellation of a mortgage which it issued in the amount of $370,000.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN and SHERI S. ROMAN, JJ.

DECISION & ORDER

ORDERED that the decree is modified, on the law, by adding to the fifth decretal paragraph thereof the words "to the extent of any interest held by the Estate of Livingston Mandel Deans" immediately following the words "State of New York;" as so modified, the decree is affirmed insofar as appealed from, without costs or disbursements.

For the reasons stated in our decision and order on the companion appeal, the Surrogate's Court lacked jurisdiction to direct the cancellation of the subject mortgage in its entirety (see Matter of Deans,AD3d [Appellate Division Docket No. 2008-04483; decided herewith]). Accordingly, the decree must be modified to indicate that the cancellation of the subject mortgage does not encompass the interests of any living persons in the property and is limited to any interest held by the Estate of Livingston Mandel Deans.

In light of the foregoing, the appellant's remaining contention has been rendered academic.

DILLON, J.P., DICKERSON, BELEN and ROMAN, JJ., concur.

20091201

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