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FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF Q UEENS
RONALD HOLTZMAN, Plaintiff,
Index No.: 716287/23
- against -
ot. Seq #001
ZELIG HOLTZMAN a/k/a ALAN HOLTZMAN, and
#1"
"JOHN DOE through "JOHN DOE #10", the
Names of the Last 10 Defendants Being Unknown,
the Parties Intended Being Lessees, Tenants or
Persons in Possession of the Premises Described
Herein or Having an Interest or Lien upon the
Premises Described in the Complaint,
Defendants.
MEMORANDUM OF LAW IN SUPPORT
OF ORDER TO SHOW CAUSE
JEFF MORGENSTERN, PLLC
Attorney for Plaintiff
One Old Country Road, Suite 320
Carle Place, New York 11514
(516) 739-5908
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TABLE OF CONTENTS
Table of Authorities................................................................................................................... li
Preliminary Statement............................................................................................................... 1
A. The Property and Its Ownership............................................................................. 1
B. Procedural History.................................................................................................. 1
Argument... ............................................................................................................................... 2
A. Legislative Background on RPAPL § 993.................,,..............,,....,...,,................,, 2
B, Relief Sought by the Instant Motion........................................................................ 3
1. The Property is "Heirs Property".............................................,....................... 4
2. Notice of Right to Buy-Out Co-Tenant Seeking Partition................................ 5
3. Notice of Mandatory Settlement Conference.................................................. 6
Conclusion.................................................,............................................................................... 7
i
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TABLE OF AUTHORITIES
Dates ESSA.(al
2d Ave. Holding 1 LLC v. Lowenbraun 2020 N.Y. Misc. Lexis 1257
(Sup Ct. NY County, 2020) 3
Statutes
N.Y. Real Property Actions and Proceedings Law § 993 (McKinney's),.............................. 2-7
Q!hatâuthorifica
2019 Sess. Law News of N.Y., Legis. Memo. Ch. 596 (McKinney's)...................................... 3
ii
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PRELIMINARY STATEMENT
Plaintiff respectfully submits this Memorandum of Law in Support of his Order to Show
Cause. By this motion, Plaintiff seeks the Court's determination that the property known as
252-32 Leith Road, Little Neck, New York (Block 8250, Lot 33) (the "Property") is "heirs
property", and that therefore Section 993 of the Real Property Actions and Proceedings Law
("RPAPL") govems this action for a partition of the Property by sale, and, upon so finding,
co-tenants'
issuing a notice of right to buy out Plaintiff and notice of the mandatory settlement
conference required under that section.
This motion is not complex, All owners of the are joined as parties in this
Property
property"
action, and there can be no genuine dispute that the Property qualifies as "heirs as
defined by statute. Accoridngly, the Court should enter an order to and
determining granting
all the relief requested forthwith.
A. THE PROPERTY
The Property that is the subject of this action is a one-family residence located in Little
Neck, New York, and solely occupied by defendant Zelig Holtzman a/k/a Alan Holtzman.
The is held the two co-owners - and his
Property by Plaintiff, brother Zelig Holtzman
a/k/a Alan Holtzman, as tenants in common, and there is no agreement all co-tenants
binding
which governs the partition of the Property.
B. PROCEDURAL HISTORY
"Complaint"
Plaintiff commenced this action by Summons and Complaint (the or
filed on August 7, 2023. In the Plaintiff asserts that he is a one-half -
"Compl.") Complaint, fifty
percent (50%) co-owner of the Property by deed from "Ronald Holtzman, as Executor of the
-1-
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Estate of Gertrude Holtzman to Ronald Holtzman and Zelig Holtzman a/k/a Alan Holtzman, as
tenants in common". Plaintiff further asserts that it has named all co-owners holding interests
in the Property as party defendants to the action. Plaintiff demands judgment partitioning the
Property and "directing the sale thereof".
To date, Defendant has not filed or served an Answer.
ARGUMENT
A. LEGISLATIVE BACKGROUND ON RPAPL § 993
The Uniform Partition of Heirs Property Act (the "Act"), codified at RPAPL § 993, was
signed into law on December 6, 2019. Plaintiff filed this action on August 7, 2023 several
years after the effective date of the Act,
The Act supplements and amends the existing statutory scheme governing actions for
the partition of property set forth in the RPAPL, Article 9 (§§ 901 et seq.) and is made
property"
applicable to actions seeking partition of property determined to be "heirs filed on or
after the Aces effective date of December 6, 2019. See RPAPL § 993(3)(a),(c). The
Legislative Memorandum provides the following background explaining the legislative
justification and intent behind the bill:
"As a general rule under current New York law, when real property has
multiple owners who hold the as tenants in one co-
property common, any
owner can try to force the sale of the property by filing a partition action in
[RPAPL]."
court under Article 9 of the
"In recent years, predatory real estate speculators have taken advantage
of New York's laws governing partition actions by purchasing a stake in
a residential - after a number of family members have
property usually
inherited the - and then that stake to file a
property using ownership
partition action to dispossess the family of the through a forced
property
sale, often for pennies on the dollar relative to the actual value of the
property. Lower and middle-class families are particularly susceptible to
-2-
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these types of schemes, as they often do not engage in the kind of
sophisticated estate planning that could prevent predatory partitioning
actions."
"This legislation would address the issue of predatory partition actions,
while preserving a co-owner's right to sell his or her share of the property.
The Act would only apply in situations where at least one of the co-owners
has inherited their property interest from a relative and there is no written
agree-ment otherwise goveming partition among the owners. In such
situations, there are a number of protections in place when a co-owner files
order[.]"
for a partition
"Justification"
2019 Sess. Law News of N.Y. Legis. Memo. Ch. 596, (McKinney's).
The Legislative Memorandum explains that, upon the court's determination that
property that is subject of an action for partition by sale is "heirs property", a number of
protections in favor of co-owners not seeking partition are put in place under the Act, including
interalla, (i) the co-owner requesting partition must give notice to all other co-owners; (ii) the
right to a court-ordered independent appraisal procedure to determine the property's fair
market value; (iii) the right of first refusal to buy out the interest of the co-owner seeking
partition for a proportional share of the court-determined fair market value, or, if no co-owner
elects to buy out the co-owner seeking partition, directing the court to consider ordering a
partition-in-kind if the property can be physically divided, /d.
B. RELIEF SOUGHT BY THE INSTANT MOTION
Defendants now move this court, pursuant to RPAPL § 993, for an Order:
(1) determining that the Property subject to this partition action is "heirs property", (2) issuing
notice to all parties of the right to buy out Plaintiff, the co-tenant seeking partition, and
(3) issuing notice of the mandatory settlement conference required thereunder. See 2nd Ave
Holdino 1 LLC v Lowenbraun. 2020 N.Y. Misc. Lexis 1257 (Sup. Ct. NY County, 2020).
-3-
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Property"
1. The Procerty is "Heirs
The Act provides:
"In any action to partition real property, the court shall determine, after
notice and the right to be heard afforded to each party, whether the property
is heirs property. If the court determines that the property is heirs property,
the property shall be partitioned in accordance with this section unless all of
record."
the co-tenants otherwise agree in a
RPAPL § 993(3)(b).
property"
"Heirs under the Act is defined as:
"[R]eal property held in tenancy in common which satisfies all of the
following requirements as of the filing of a partition action:
there is no agreement in a record all of the co-
"(i) binding
tenants which govems the partition of the property;
(ii) any of the co-tenants acquired title from a relative, whether
living or deceased, and
(iii) any of the following applies:
(a) twenty percent or more of the interests are
held by co-tenants who are relatives;
(b) twenty percent or more of the interests are
held by an individual who acquired title from
a relative, whether living or deceased;
(c) twenty percent or more of the co-tenants
are relatives of each other, or
(d) any co-tenant who acquired title from a
property."
relative resides in the
RPAPL § 993(1)(e). Here, the Property is "heirs property", as it is held: (i) by tenants in
common with no agreement binding all co-tenants in the event of partition; (ii) by at least one
co-tenant who acquired title from a relative; and (iii) 20% or more of the interests are held by
co-tenants who are relatives, Ronald Holtzman and Zelig Holtzman a/k/a Alan Holtzman each
-4-
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hold equal and undivided one-half interests as tenants in common, as the deed contains
language as to a tenancy in common,
Accordingly, based on the recorded deed and the Complaint, the Property is presently
held by two (2) co-owners, all parties to this action, as tenants in common:
(a) Ronald Holtzman; and
(b) Zelig Holtzman a/k/a Alan Holtzman.
2. Notice of Right to Buy Out Co-Tenant Seeking Partition
Under the Act, when a co-tenant files an action for partition by sale of "heirs property",
the Act specifies that the co-tenant seeking partition thereby agrees to have his interest
bought out by the other co-tenants:
"Every co-tenant who requests or joins a request for partition of heirs
property by sale has thereby agreed that his or her interest may be
acquired in accordance herewith at the value determined under
subdivision six of this section by the co-tenants who have not sought or
sale."
joined in the request for partition of
"shall"
RPAPL § 993(7)(a). Upon finding the property is "heirs property", the court send notice
to all parties of the right to avert partition by sale by buying out the interest of the co-tenant
seeking partition:
"Upon determination that the property is heirs property and prior to the
determination of value under subdivision six of this section, the court shall
send notice to all parties identifying the owners of interests that have
sought partition by sale, the percentage interests such owners allege to
hold and of the right of remaining co-tenants to avert partition by sale by
exercising the right to purchase all of the interests of the co-tenants who
sale."
requested partition of
Accordingly, Plaintiff requests that the Court enter an order identifying Plaintiff as the
alleged co-owner of an undivided one-half (50%) interest in the Property that has sought a
-5-
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partition by sale, and notifying Defendant, as the remaining co-tenants, of his right to purchase
all of the interests of Plaintiff, as the co-tenant who requested partition by sale.
3. Notice of Mandatory Settlement Conference
The Act provides that:
"the court shall hold a mandatory conference within sixty days after the
date when a request for judicial intervention is filed, or on such adjourned
date as has been agreed to by the parties, for the purpose of holding
settlement discussions pertaining to the relative rights and obligations of
the parties with respect to the subject property including, but not limited to,
section."
as set forth in this
RPAPL § 993(5)(a).
The court shall send notice of the settlement conference required by the Act to be held
within sixty days of the filing of a Request for Judicial Intervention ("RJi"), in a form prescribed
by the office of court administration, which notice shall be placed on the Property within twenty
(20) days of the date of the notice:
"Upon the filing of a request for judicial intervention, the court shall
promptly send a notice to the parties advising them of the time and place
of the settlement conference, the purpose of the conference and the
requirements of this section. The notice shall be in a form prescribed by
the office of court administration, or, at the discretion of the office of court
administration, the administrative judge of the judicial district in which the
action is pending. Plaintiff shall post a copy of the settlement conference
notice in a conspicuous place on the property within twenty days of the
notice."
date of the
RPAPL § 993(5)(b).
"shall"
The Act specifies that good faith negotiations take place at such mandatory
settlement conference, including the allocation, mechanics, and financing of a co-tenant buy
out.
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"Both the plaintiffs and defendants shall negotiate in good faith to reach a
mutually agreeable resolution including, but not limited to, a tenancy in
Preview
FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF Q UEENS RONALD HOLTZMAN, Plaintiff, Index No.: 716287/23 - against - ot. Seq #001 ZELIG HOLTZMAN a/k/a ALAN HOLTZMAN, and #1" "JOHN DOE through "JOHN DOE #10", the Names of the Last 10 Defendants Being Unknown, the Parties Intended Being Lessees, Tenants or Persons in Possession of the Premises Described Herein or Having an Interest or Lien upon the Premises Described in the Complaint, Defendants. MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE JEFF MORGENSTERN, PLLC Attorney for Plaintiff One Old Country Road, Suite 320 Carle Place, New York 11514 (516) 739-5908 1 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 TABLE OF CONTENTS Table of Authorities................................................................................................................... li Preliminary Statement............................................................................................................... 1 A. The Property and Its Ownership............................................................................. 1 B. Procedural History.................................................................................................. 1 Argument... ............................................................................................................................... 2 A. Legislative Background on RPAPL § 993.................,,..............,,....,...,,................,, 2 B, Relief Sought by the Instant Motion........................................................................ 3 1. The Property is "Heirs Property".............................................,....................... 4 2. Notice of Right to Buy-Out Co-Tenant Seeking Partition................................ 5 3. Notice of Mandatory Settlement Conference.................................................. 6 Conclusion.................................................,............................................................................... 7 i 2 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 TABLE OF AUTHORITIES Dates ESSA.(al 2d Ave. Holding 1 LLC v. Lowenbraun 2020 N.Y. Misc. Lexis 1257 (Sup Ct. NY County, 2020) 3 Statutes N.Y. Real Property Actions and Proceedings Law § 993 (McKinney's),.............................. 2-7 Q!hatâuthorifica 2019 Sess. Law News of N.Y., Legis. Memo. Ch. 596 (McKinney's)...................................... 3 ii 3 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 PRELIMINARY STATEMENT Plaintiff respectfully submits this Memorandum of Law in Support of his Order to Show Cause. By this motion, Plaintiff seeks the Court's determination that the property known as 252-32 Leith Road, Little Neck, New York (Block 8250, Lot 33) (the "Property") is "heirs property", and that therefore Section 993 of the Real Property Actions and Proceedings Law ("RPAPL") govems this action for a partition of the Property by sale, and, upon so finding, co-tenants' issuing a notice of right to buy out Plaintiff and notice of the mandatory settlement conference required under that section. This motion is not complex, All owners of the are joined as parties in this Property property" action, and there can be no genuine dispute that the Property qualifies as "heirs as defined by statute. Accoridngly, the Court should enter an order to and determining granting all the relief requested forthwith. A. THE PROPERTY The Property that is the subject of this action is a one-family residence located in Little Neck, New York, and solely occupied by defendant Zelig Holtzman a/k/a Alan Holtzman. The is held the two co-owners - and his Property by Plaintiff, brother Zelig Holtzman a/k/a Alan Holtzman, as tenants in common, and there is no agreement all co-tenants binding which governs the partition of the Property. B. PROCEDURAL HISTORY "Complaint" Plaintiff commenced this action by Summons and Complaint (the or filed on August 7, 2023. In the Plaintiff asserts that he is a one-half - "Compl.") Complaint, fifty percent (50%) co-owner of the Property by deed from "Ronald Holtzman, as Executor of the -1- 4 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 Estate of Gertrude Holtzman to Ronald Holtzman and Zelig Holtzman a/k/a Alan Holtzman, as tenants in common". Plaintiff further asserts that it has named all co-owners holding interests in the Property as party defendants to the action. Plaintiff demands judgment partitioning the Property and "directing the sale thereof". To date, Defendant has not filed or served an Answer. ARGUMENT A. LEGISLATIVE BACKGROUND ON RPAPL § 993 The Uniform Partition of Heirs Property Act (the "Act"), codified at RPAPL § 993, was signed into law on December 6, 2019. Plaintiff filed this action on August 7, 2023 several years after the effective date of the Act, The Act supplements and amends the existing statutory scheme governing actions for the partition of property set forth in the RPAPL, Article 9 (§§ 901 et seq.) and is made property" applicable to actions seeking partition of property determined to be "heirs filed on or after the Aces effective date of December 6, 2019. See RPAPL § 993(3)(a),(c). The Legislative Memorandum provides the following background explaining the legislative justification and intent behind the bill: "As a general rule under current New York law, when real property has multiple owners who hold the as tenants in one co- property common, any owner can try to force the sale of the property by filing a partition action in [RPAPL]." court under Article 9 of the "In recent years, predatory real estate speculators have taken advantage of New York's laws governing partition actions by purchasing a stake in a residential - after a number of family members have property usually inherited the - and then that stake to file a property using ownership partition action to dispossess the family of the through a forced property sale, often for pennies on the dollar relative to the actual value of the property. Lower and middle-class families are particularly susceptible to -2- 5 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 these types of schemes, as they often do not engage in the kind of sophisticated estate planning that could prevent predatory partitioning actions." "This legislation would address the issue of predatory partition actions, while preserving a co-owner's right to sell his or her share of the property. The Act would only apply in situations where at least one of the co-owners has inherited their property interest from a relative and there is no written agree-ment otherwise goveming partition among the owners. In such situations, there are a number of protections in place when a co-owner files order[.]" for a partition "Justification" 2019 Sess. Law News of N.Y. Legis. Memo. Ch. 596, (McKinney's). The Legislative Memorandum explains that, upon the court's determination that property that is subject of an action for partition by sale is "heirs property", a number of protections in favor of co-owners not seeking partition are put in place under the Act, including interalla, (i) the co-owner requesting partition must give notice to all other co-owners; (ii) the right to a court-ordered independent appraisal procedure to determine the property's fair market value; (iii) the right of first refusal to buy out the interest of the co-owner seeking partition for a proportional share of the court-determined fair market value, or, if no co-owner elects to buy out the co-owner seeking partition, directing the court to consider ordering a partition-in-kind if the property can be physically divided, /d. B. RELIEF SOUGHT BY THE INSTANT MOTION Defendants now move this court, pursuant to RPAPL § 993, for an Order: (1) determining that the Property subject to this partition action is "heirs property", (2) issuing notice to all parties of the right to buy out Plaintiff, the co-tenant seeking partition, and (3) issuing notice of the mandatory settlement conference required thereunder. See 2nd Ave Holdino 1 LLC v Lowenbraun. 2020 N.Y. Misc. Lexis 1257 (Sup. Ct. NY County, 2020). -3- 6 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 Property" 1. The Procerty is "Heirs The Act provides: "In any action to partition real property, the court shall determine, after notice and the right to be heard afforded to each party, whether the property is heirs property. If the court determines that the property is heirs property, the property shall be partitioned in accordance with this section unless all of record." the co-tenants otherwise agree in a RPAPL § 993(3)(b). property" "Heirs under the Act is defined as: "[R]eal property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action: there is no agreement in a record all of the co- "(i) binding tenants which govems the partition of the property; (ii) any of the co-tenants acquired title from a relative, whether living or deceased, and (iii) any of the following applies: (a) twenty percent or more of the interests are held by co-tenants who are relatives; (b) twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; (c) twenty percent or more of the co-tenants are relatives of each other, or (d) any co-tenant who acquired title from a property." relative resides in the RPAPL § 993(1)(e). Here, the Property is "heirs property", as it is held: (i) by tenants in common with no agreement binding all co-tenants in the event of partition; (ii) by at least one co-tenant who acquired title from a relative; and (iii) 20% or more of the interests are held by co-tenants who are relatives, Ronald Holtzman and Zelig Holtzman a/k/a Alan Holtzman each -4- 7 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 hold equal and undivided one-half interests as tenants in common, as the deed contains language as to a tenancy in common, Accordingly, based on the recorded deed and the Complaint, the Property is presently held by two (2) co-owners, all parties to this action, as tenants in common: (a) Ronald Holtzman; and (b) Zelig Holtzman a/k/a Alan Holtzman. 2. Notice of Right to Buy Out Co-Tenant Seeking Partition Under the Act, when a co-tenant files an action for partition by sale of "heirs property", the Act specifies that the co-tenant seeking partition thereby agrees to have his interest bought out by the other co-tenants: "Every co-tenant who requests or joins a request for partition of heirs property by sale has thereby agreed that his or her interest may be acquired in accordance herewith at the value determined under subdivision six of this section by the co-tenants who have not sought or sale." joined in the request for partition of "shall" RPAPL § 993(7)(a). Upon finding the property is "heirs property", the court send notice to all parties of the right to avert partition by sale by buying out the interest of the co-tenant seeking partition: "Upon determination that the property is heirs property and prior to the determination of value under subdivision six of this section, the court shall send notice to all parties identifying the owners of interests that have sought partition by sale, the percentage interests such owners allege to hold and of the right of remaining co-tenants to avert partition by sale by exercising the right to purchase all of the interests of the co-tenants who sale." requested partition of Accordingly, Plaintiff requests that the Court enter an order identifying Plaintiff as the alleged co-owner of an undivided one-half (50%) interest in the Property that has sought a -5- 8 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 partition by sale, and notifying Defendant, as the remaining co-tenants, of his right to purchase all of the interests of Plaintiff, as the co-tenant who requested partition by sale. 3. Notice of Mandatory Settlement Conference The Act provides that: "the court shall hold a mandatory conference within sixty days after the date when a request for judicial intervention is filed, or on such adjourned date as has been agreed to by the parties, for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties with respect to the subject property including, but not limited to, section." as set forth in this RPAPL § 993(5)(a). The court shall send notice of the settlement conference required by the Act to be held within sixty days of the filing of a Request for Judicial Intervention ("RJi"), in a form prescribed by the office of court administration, which notice shall be placed on the Property within twenty (20) days of the date of the notice: "Upon the filing of a request for judicial intervention, the court shall promptly send a notice to the parties advising them of the time and place of the settlement conference, the purpose of the conference and the requirements of this section. The notice shall be in a form prescribed by the office of court administration, or, at the discretion of the office of court administration, the administrative judge of the judicial district in which the action is pending. Plaintiff shall post a copy of the settlement conference notice in a conspicuous place on the property within twenty days of the notice." date of the RPAPL § 993(5)(b). "shall" The Act specifies that good faith negotiations take place at such mandatory settlement conference, including the allocation, mechanics, and financing of a co-tenant buy out. 9 of 12 FILED: QUEENS COUNTY CLERK 12/13/2023 06:22 PM INDEX NO. 716287/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/13/2023 "Both the plaintiffs and defendants shall negotiate in good faith to reach a mutually agreeable resolution including, but not limited to, a tenancy in