Cite as: Matter of Amiaga, 2011-3477/A, NYLJ 1202586125879, at *1 (Surr., SU, Decided July 26, 2012)

Surrogate John M. Czygier

Click here to see Judicial Profile

Decided: July 26, 2012


Attorneys for Petitioner: By: Joseph A. Costantino, Esq., Costantino & Costantino, Esqs., Copiague, New York.

Attorneys for Respondents: By: Peter C. Humblias, Esq., The Law Offices of Peter C. Humblias, LLC, Paramus, New Jersey.





Before the court is a motion to dismiss, with prejudice, an application for leave to bring a partition action in Supreme Court, Suffolk County. For the reasons set forth, the motion is granted solely to the extent outlined herein.


The record reflects that captioned decedent died intestate, a domiciliary of New Jersey, on June 12, 2011. His surviving spouse (petitioner herein) received letters of administration from the Bergen County (New Jersey) Surrogate's Court on or about July 1, 2011. An application for ancillary letters of administration upon service of process to the state tax commission, as required by SCPA 1609(2), was granted, whereupon letters issued to Marina Amiaga, decedent's surviving spouse, on December 12, 2011. The application was granted on the representation that captioned decedent died with an interest in certain property located at 350 Richmond Road, Southhold, New York (Suffolk County). In January, 2012, petitioner commenced an action for partition in Suffolk County Supreme Court against decedent's surviving children, Christopher Amiaga and Laura




Ashtyani, who it is alleged also have an interest in the Southold property. According to the papers before the court, the parties to the partition action (i.e. counsel for petitioner, Christopher Amiaga and Laura Ashtyani) executed a stipulation of discontinuance, without prejudice, on February 10, 2012. Petitioner then commenced the underlying proceeding in this court for leave to commence a partition action.

Service of process in said underlying proceeding issued to Christopher Amiaga and Laura Ashtyani (respondents herein). In lieu of filing an answer, respondents have filed a motion to dismiss the petition for leave to commence a partition action on various grounds, including CPLR 3211(a)(4).

Respondents contend that ownership interests in the Southold property are among the subjects of an action in New Jersey Superior Court, Bergen County. According to respondents, when the decedent was married to his former wife (Caroline Ciochetto f/k/a Caroline Amiaga), they purchased the Southold property in December, 1969 and held title as tenants by the entirety. Subsequently, on October 5, 1985, they entered into a Separation Agreement in which they agreed to transfer their interests in the Southold property to their children: Christopher and Laura. The agreement specifically stated that it would be governed by the laws of New Jersey and was incorporated by reference into the final judgment of divorce issued by the New Jersey Superior Court, Chancery Division on November 18, 1985. It appears that the property was not transferred out of decedent's name during his lifetime. It further appears that his former wife did not transfer her interest until September 30, 2011. The property is, therefore, currently titled in the name of decedent and Christopher Amiaga and Laura Ashtyani as tenants in common.

Counsel for respondents filed an action in New Jersey Superior Court, Bergen County, against petitioner, seeking inter alia, specific performance and a declaratory judgment that they (respondents) are the owners of the property, as well as an accounting with respect to decedent's estate. The action is premised upon the terms of the aforementioned Separation Agreement.





Counsel for respondents argue that they are entitled to dismissal of this proceeding on grounds of another action pending (CPLR 3211(a)(4)), claiming that the New Jersey action involves the same parties, claims and legal issues; and that the New Jersey action will provide more comprehensive relief. Counsel argues that allowing the proceeding before this court may result in disparate findings, and that the continuation of this proceeding will be highly prejudicial and a hardship to respondents, who are New Jersey residents, as is petitioner. Respondents are also claiming forum non conveniens and improper venue, as well as entitlement to dismissal on choice of law and res judicata/collateral estoppel grounds. As alternate relief, respondents suggest that this court stay these proceedings pending resolution of the New Jersey litigation. Having said that, respondents also argue that New Jersey's "Entire Controversy Doctrine" would bar a litigant from seeking to litigate the same claims in New York.

In opposition to the motion, petitioner asserts that she and the decedent enjoyed the use of the Southold property from 1985 up until his death and paid all expenses associated with maintenance and repair/improvement. In fact, petitioner raises a claim for adverse possession in these papers. Petitioner claims that this court has every right to assert jurisdiction over the Southold property, as it constitutes real property within the state titled in the name of a nondomiciliary, ownership thereof being pertinent to the affairs of the decedent. Records (re: title, etc.) concerning said property would also be available in Suffolk County. Petitioner further suggests that respondents, who were adults at the time the separation agreement was entered into, may be time-barred with respect to enforcing their rights as third party beneficiaries of the 1985 agreement.

In reply, counsel for respondents object to petitioner raising the possibility of an adverse possession claim in the opposition papers. It is asserted that the entire Amiaga Family was operating under a "family agreement" since the 1985 divorce (Reply Memorandum of Law, p. 10) and that this agreement addresses payments made to support the Southold property. The affidavits of Caroline Ciochetto, Henry Goetz (a Southold neighbor), Christopher Amiaga and Laura Ashtyani are provided the court to support respondents' contentions about the "family




agreement" and that the decedent and petitioner only used the property sporadically as a vacation home.


Of course, the validity of a testamentary disposition of real property, and the manner in which such property descends when not disposed of by will, are determined by the law of the jurisdiction in which the land is situated (EPTL 3-5.1(b)(1)). However, the devolution of the property at issue here will be based on the interpretation of an agreement entered into in the course of matrimonial litigation in the State of New Jersey, which specifically states it is governed by New Jersey law. Indeed, the enforcement of such agreement according to its terms may result in a determination that the Southold property should not be an asset of captioned decedent's estate. Under these circumstances, this court concludes that the New Jersey Superior Court, Bergen County, is better equipped to grant complete relief to the parties involved.

Upon application of CPLR 3211(a)(4), which allows for dismissal where there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss, but may make such order as justice requires.

The court is not inclined to dismiss these proceedings, with prejudice, at this juncture, however. It must be noted for the record that the role of the Surrogate's Court on an application for leave to commence a partition action is circumscribed by SCPA 1901(2)(i) and RPAPL 901(4), which provide the court with the limited procedural role of assuring that all the estate's beneficiaries or distributees, as the case may be, receive notice of such an application without conferring jurisdiction on this court to determine the merits of whether partition is warranted (See, Estate of Martin, 6/21/96 NYLJ 26 [col. 5]; Estate of Dickson, 1/10/95 NYLJ 28 [col. 2]; Estate of Torre, 11/4/92 NYLJ 30 [col. 4]).

Accordingly, upon this record, it is

ORDERED that respondents' motion to dismiss the pending proceeding for leave to seek partition is granted solely to the




extent of holding the underlying proceeding in abeyance, for all purposes, pending resolution of the action commenced in New Jersey Superior Court, Law Division: Bergen County under the caption Amiaga, et al v. Amiaga, Docket No.: BER-L-1988-12; and it is further

ORDERED that, in the event the issues raised herein are not resolved by resolution of the above-referenced action in New Jersey Superior Court, the underlying proceeding may be restored to the calendar by counsel for either party on written notice to his or her adversary.