In this tax lien foreclosure matter, the issue of the distribution of the surplus funds after the foreclosure sale of the subject property is before this court. The two claimants to the Surplus Monies are defendants DANNY Z, LLC (“DANNY Z”) and The Public Administrator of Bronx County (“Public Administrator”), as Administrator to the Estate of LUCILLE HERCULES BARROW (“the Decedent”).
On August 1, 2016, the Tax Lien affecting the underlying property was auctioned and sold to the highest bidder for $360,000.00. On January 18, 2017, Robert Moll, Esq., as Referee, filed the Referee Report of Sale indicating that as a result of the sale of the underlying property, minus administrative and other related expenses, there was a surplus of $276,101.78. On February 1, 2017, the NYC Department of Finance (“NYC DOF”) issued a receipt acknowledging having received, from the Supreme Court — Bronx County Clerks Office, Surplus Monies in the amount of $276,101.78.
The Abandoned Property Law requires NYC DOF to pay funds to The Office of the State Comptroller (“OSC”) after three years (APL § 600(1)[a]). As the three-year period had elapsed, NYC DOF was obligated to pay the funds to OSC. On April 5, 2021, the NYC DOF paid $285,202.40 to OSC.
On April 15, 2021 this Court issued an Order disaffirming the Referee, Deidre R. Moore, Esq.’s Report of August 14, 2019 wherein she recommended that the surplus funds be turned over to the Public Administrator. This Court found that the claimant, DANNY Z established that it received a deed from the only known heir, Yvonne Hercules Barrow, and found that DANNY Z was entitled to all surplus funds.
On June 15, 2021, the Court issued an Order directing the Bronx County Treasurer to disburse the funds. Unbeknownst to the Court and DANNY Z, the surplus funds were no longer being held by the Bronx County Treasurer and were in the custody of the OSC. On February 15, 2022, this Court issued an Amended Order directing OSC to disburse the funds to DANNY Z. The Amended Order did not include consideration of the OSC papers in opposition thereto. The OSC, as custodians of the surplus funds, now moves to vacate pursuant to CPLR 5015, Orders dated April 15, 2021 and June 15, 2021 and Amended Order dated February 15, 2022; and/or Renew pursuant to CPLR 2221(e); and/or Remove pursuant to CPLR 325 (e).
In this action, the Referee and Public Administrator challenged the status of Yvonne Hercules Barrow as being the sole heir of Decedent. In support of their challenge to Yvonne Hercules Barrows purported status as the sole heir, the Referee noted in her August 14, 2019 report that the Decedents death certificate showed that at the time of her demise, Decedent was married/separated. This Court agrees with the OSC that once the Referee and Public Administrator identified information showing Decedent was survived by a spouse, a determination should have been made to determine the existence of a surviving spouse and other possible heirs. It should be noted that, contrary to DANNY Zs opposition, the affidavit of Yvonne Hercules Barrow does not sufficiently establish whether there are any other heirs to the estate of the Decedent or her son, James Samuel Hercules.
The Supreme Court and the Surrogates Court have concurrent jurisdiction over the administration of a decedents estate (see Goodwin v Rice, 79 AD3d 699, 699-700 [2010]). “However, ‘[w]herever possible, all litigation involving the property and funds of a decedents estate should be disposed of in the Surrogates Court’ ” (Cipo v Van Blerkom, 28 AD3d 602 [2006], quoting Nichols v Kruger, 113 AD2d 878, 878-879 [1985]). In this action, the non-party DANNY Z seeks to recover funds of an estate. As such, determination of this action “affects the administration of a decedents estate” (CPLR 325 [e]). Accordingly, this Court is exercising its power under article VI, § 19 (a) of the New York Constitution to grant the movants motion pursuant to CPLR 325 (e) to remove this action to the Surrogates Court, Bronx County.
Accordingly, it is hereby
ORDERED that this Courts Orders dated April 15, 2021 and June 15, 2021 and Amended Order dated February 15, 2022 are hereby vacated; and it is further
ORDERED that the Referees report dated August 14, 2019 is affirmed and the OSC is directed to disburse the Referees fee of twelve thousand three hundred dollars ($12,300.00) and the balance to the Public Administrator as Administrator of Decedents estate; and it is further
ORDERED that this action is removed to the Surrogates Court, Bronx County; and it is further
ORDERED that the Bronx County Public Administrator serve a copy of this Order upon the parties participating in the instant motion, and to the Clerk of the Bronx Supreme Court who shall, upon such service, transfer to the Bronx Surrogates Court all of the papers heretofore filed in said action.
This is the Decision and Order of the Court.
Adrian Armstrong, J.