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Herskovitz v. Steinmetz

Supreme Court of New York, New York County

May 16, 2013

Pearl HERSKOVITZ, as Administratrix c.t.a. of the Estate of Sidney Steinmetz, Deceased, Plaintiff,
Miriam STEINMETZ and 10 West 66th Street Corporation, Defendants.

[965 N.Y.S.2d 334] Harriet Harkavy, Esq., New York, for plaintiff.

Miriam Steinmetz, pro se.

Cadwalader, Wickersham & Taft LLP, of Counsel, by William Schwartz and Terence F. Gilheany, New York, for defendant.

Rosen Livingston & Cholst LLP, New York, for defendant 10 West 66th Street Corporation.


Page 440

This is an action originally for partition and an accounting. The amended complaint added a cause of action for a declaratory judgment.[1] DEFENDANT MIRIAM Steinmetz (Miriam), the widow of Sidney Steinmetz (Sidney), moves for an order granting her summary judgment dismissing the complaint of Pearl Herskovitz (Herskovitz), the Administratrix of her father Sidney's estate. By March 21, 2013 stipulation, the parties agreed that the motion would be decided on the original pleadings and that the decision would apply to the amended complaint. No additional arguments were asserted as to the additions in the amended complaint.

Sidney married Miriam, his second wife, some time before 1990. According to Herskovitz, Sidney's daughter by his first wife, Sidney and Miriam moved into an apartment on Central Park South in 1990. The share certificate for that apartment lists the couple as " JTWROS" (joint tenants with rights of survivorship). Thereafter, as reflected in another share certificate, the couple acquired, as tenants by the entirety, another apartment on Central Park West, into which they moved, without ever selling the Central Park South apartment. On April 29, 1994, the couple acquired the subject cooperative apartment, 10C (apartment), at 10 West 66th Street, New York, New York, a unit that they supposedly never occupied.

The stock certificate for the apartment simply recites that Sidney and Miriam were the owners. The closing statement

Page 441

states that the original of the proprietary lease was between defendant 10 West 66th Street Corporation (10 West) as lessor, and Sidney and Miriam Steinmetz, " as joint tenants as [sic] right of survivorship." Further, the proprietary lease, which was executed by Sidney and Miriam, contains a cover sheet and a first paragraph which describe the couple as " JTWROS." That lease provides that the shares were issued simultaneously with the lease and that it [965 N.Y.S.2d 335] was appurtenant to the shares. Counsel for 10 West indicated in a March 8, 2010 letter that Miriam owned the shares as the sole surviving joint tenant, and in an October 19, 2011 letter that Sidney and Miriam owned the shares and appurtenant proprietary lease, " as Joint Tenants with Right of Survivorship."

On September 9, 2008, Sidney died, leaving a 1987 will in which he bequeathed the residual of his estate to his three daughters by his first marriage. After Sidney's death, Miriam became the sole owner of the shares of the Central Park South and Central Park West apartments, as conceded by Herskovitz. Sidney's will was admitted to probate on about August 10, 2010. Meanwhile, after Sidney's death, Miriam assumed control over the subject apartment, and allegedly refused to provide Herskovitz or her sisters with access to the apartment, or any information concerning occupancy of the apartment or its physical or financial status.

A party moving for summary judgment must demonstrate his, her, or its entitlement thereto as a matter of law, pursuant to CPLR 3212(b)( Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 [2008]; Sumitomo Mitsui Banking Corp. v. Credit Suisse, 89 A.D.3d 561, 563, 933 N.Y.S.2d 234 [1st Dept. 2011]; see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ). To defeat summary judgment, the party opposing the motion must show that there is a material question(s) of fact that requires a trial ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; CitiFinancial Co. (DE) v. McKinney, 27 A.D.3d 224, 226, 811 N.Y.S.2d 359 [1st Dept. 2006]; see Vega v. Restani Constr. Corp., 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240).

The ownership interest of a tenant-shareholder in a co-operative apartment is sui generis. It reflects only an ownership of a proprietary lease, and therefore arguably an interest in a chattel real, conditional however upon his shareholder interest in the co-operative corporation, an interest always treated as personal property.

( Matter of State Tax Commn. v. Shor, 43 N.Y.2d 151, 154, 400 N.Y.S.2d 805, 371 N.E.2d 523 [1977] ). The corporate and proprietary leasehold attributes of the ...

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