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Decided on November 2, 2007
Supreme Court, Dutchess County
Donald J. Tangredi and Joseph D. Quinn, III, Plaintiffs,
against
Margaret Anderson, a/k/a Margaretta Anderson, a/k/a Margaret "Peggy" Anderson, Defendant.
In the Matter of the Petition of DANIEL F. CURTIN, as Executor of the Estate of MARGARETTA M. ANDERSON, A/K/A MARGARET M. ANDERSON, to compel PATRICIA MOUNT, as Executrix of the Estate of EMMA MAY RYMPH, deceased, to satisfy a legacy of real property and to compel PATRICIA MOUNT to render and settle her account as Executrix of the Estate of EMMA MAY RYMPH,






4415/04
Stephen E. Diamond, Esq. Gellert & Klein, P.C.
Attorneys for Donald J. Tangredi And Joseph D. Quinn, III 75 Washington Street Poughkeepsie, New York 12601 Kevin V. Brennan, Esq. Attorney for Executrix Patricia Mount 284 Main Street Cornwall, New York 12518 Robert J. Lackaye, Esq. Attorney for Estate of Margaret Anderson 90 Market Street
P.O. Box 5188
Poughkeepsie, NEW York 12602
James D. Pagones, J.
This motion by the estate of Margaretta M. Anderson ("Anderson") for an order pursuant to Rule 2221 of the CPLR granting renewal and/or reargument of plaintiff's prior motion in the partition action seeking multiple relief including dismissal of plaintiff's complaint, judgment declaring that defendant is the sole owner in fee simple of a parcel of land and cross-motion by plaintiffs in the Supreme Court action for the partition, for an order dismissing the first, second, and third affirmatives defenses contained in the defendant's answer to the complaint and for an order granting summary judgment to plaintiffs, and for an order denying defendant's motion of summary judgment, are resolved as follows.
BACKGROUND
Emma May Rymph ("the decedent") died testate on August 7,
1999. Her will, dated October 1, 1998, was admitted to probate on February 4, 2000. The decedent appointed Patricia Mount ("Mount") to serve as executrix. Mount continues to serve in [*2]that capacity.
Paragraph FOURTH of the will sets forth a specific devise of real property, as follows:
"I give and devise all of the real property of which I die possessed except for the land and improvements thereon, including contents, located at 513 Salt Point Turnpike, Poughkeepsie, New York to my niece, MARGARET "PEGGY" ANDERSON (presently residing at Poughkeepsie, New York)."
Paragraph SIXTH of the will grants the executrix the power to sell.
Margaret Anderson ("Anderson") died testate on January 5, 2007. Her will, dated May 11, 2002, was admitted to probate on March 8, 2007. Daniel F. Curtin serves as executor in that estate.
The decedent owned real property known as 517 Salt Point Turnpike, Poughkeepsie, New York when she died. It consists of approximately 16.491 acres.
On January 1, 1979, the decedent entered into a thirty (30) year lease agreement with Tangredi and Quinn for a portion of the 517 Salt Point Turnpike property. That parcel constitutes 1.406 acres and was known by the parties as 513 Salt Point Turnpike.
Paragraph NINETH (sic) of the lease agreement provides as follows:
"NINETH: Upon the death of the LANDLORD' during the term of this lease, title to all that certain parcel described in the addendum hereto, which parcel includes the demised premises, described above, shall vest in the TENANTS' Donald Tangredi and Joseph D. Quinn, III, as TENANTS IN COMMON'. The parties consent to the recording of a memorandum of this lease agreement to effectuate the foregoing purpose."
The addendum to the lease contains a metes and bounds description of the premises. It acknowledges that the parcel is a portion of the larger tract. The parties never obtained municipal approval to subdivide the premises.
The decedent, Tangredi and Quinn executed a memorandum of lease on January 1, 1979. The memorandum includes an identical metes and bounds description as in the lease. The memorandum further provides as follows:
"Upon the death of the LANDLORD' during the term of this lease, title to all that certain parcel described in the addendum hereto, which parcel includes the demised premises, described above, shall vest in the TENANTS' Donald Tangredi and Joseph D. Quinn, III, as TENANTS IN COMMON'. The parties consent to the recording of a memorandum of this lease agreement to effectuate the foregoing purpose."
The memorandum was recorded in the Dutchess County Clerk's Office on May 15, 1979 in Book 1508 of Deeds at page 76.
On January 15, 1993, the decedent, Tangredi and Quinn executed a lease modification agreement. The decedent consented to the assignment of the lease by Tangredi and Quinn to subtenants, Albert Cicman and Lynn Cicman. Furthermore, the lease modification agreement amended the lease agreement of January 1, 1979 to provide that, not withstanding the assignment, title to the leased premises would vest in Tangredi and Quinn upon the decedent's death prior to the expiration of the term of the lease (December 31, 2008).
Following her appointment as executrix, Mount, utilizing estate assets, attempted without [*3]success to have 517 Salt Point Turnpike subdivided to allow for conveyance of the leased premises to Tangredi and Quinn, with the balance of the larger parcel conveyed to Anderson. Mount continued to collect rent from the premises, ascribing them as estate assets.
On March 31, 2003, Mount issued an executor's deed conveying title to the entire parcel of

16.491 acres to Tangredi, Quinn and Anderson, as tenants in common.
However, the deed was not recorded until April 7, 2004 in the Dutchess County Clerk's Office at Document No.02 2004 4239. The executrix did not seek leave of this court pursuant to SCPA Article 19 to dispose of the real property prior to issuing the deed.
Tangredi and Quinn commenced an action against Anderson in Dutchess County Supreme Court for an order of sale in partition of the entire parcel on September 23, 2004.
The partition action was transferred to this court pursuant to SCPA

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