Adverse Possession

The New York Court of Appeals has held that adverse possession defeated an estate claim

Dorothy Golobe died in 1992. Her estate included a three-story building at 265 West 30th St, New York (“the Premises”). Dorothy’s nephew, John Golobe (“Mr. Golube”), became the estate’s administrator. He informed Surrogate’s Court that his father, Dorothy’s brother Zangwill Golobe, was Dorothy’s only surviving heir. An attorney and friend who had known the family for decades testified that Dorothy’s other brother, Yale Golobe, had predeceased her by six or seven years. Surrogate’s Court found that Zangwill was Dorothy’s sole distributee, and Zangwill renounced his interest in favor of Mr. Golobe. Mr. Golobe has possessed and maintained the property ever since. So far, so good.

But there’s a twist: when Dorothy died, Yale was still alive. He therefore should have inherited a one-half interest in Dorothy’s estate, including the Premises. The parties agree that until 2018, Mr. Golobe did not know that Yale had survived Dorothy. After discovering the error, Mr. Golobe brought this action claiming that he had acquired sole ownership of the Premises through adverse possession. Yale’s successor—the Emil Kraus Revocable Trust—counterclaimed for fraud and breach of fiduciary duty based on Mr. Golobe’s conduct as administrator of Dorothy’s estate.

We now hold that Mr. Golobe is the sole owner of the Premises through adverse possession and affirm the dismissal of the Trust’s counterclaims.

RIVERA, J. (dissenting):

This appeal centers on a mistake of fact dating back to 1992, when Dorothy Golobe died intestate and her nephew, plaintiff John Golobe, failed to act diligently to confirm whether his father was the sole surviving heir. A month after Dorothy’s death, plaintiff represented to Surrogate’s Court that his father, Zangwill, was Dorothy’s brother and the sole surviving distributee, and thus entitled to the entire estate. In fact, Dorothy was also survived by her other brother, Yale. According to plaintiff, at the time he made this representation to the court, the basis for his belief that Yale predeceased Dorothy was threefold: (1) plaintiff and some unnamed members of the “family” had not heard from Yale in several years; (2) a family friend of 30 years believed Yale had died about six years before Dorothy, even though the friend failed to explain the basis for that belief; and (3) because Yale was approximately ten years older than Dorothy, who died at 85 years of age, plaintiff assumed that Yale died before her. Plaintiff also misrepresented the net worth of Dorothy’s estate to Surrogate’s Court for months, until after he personally acquired full interest in the estate, even though at all relevant times he was aware of her real property holdings.

Plaintiff’s submissions containing his representations were inadequate under the Surrogate’s Court Procedure Act and the Uniform Rules for Surrogate’s Court, which required that he undertake a diligent search to discover evidence of Yale’s death and that he provide a complete inventory and valuation of the estate (SCPA 2225; Uniform Rules for Surrogate’s Court § 207.20). Nevertheless, plaintiff sought and obtained letters of administration of Dorothy’s estate from Surrogate’s Court, and he successfully petitioned to have his father declared the sole surviving distributee of the estate. Within months, plaintiff’s father renounced his entire distributive share and plaintiff, as the estate administrator, deeded the premises at the heart of this litigation to himself.

Over twenty years later, when plaintiff attempted to sell the premises, that was now worth millions of dollars, a title search company discovered Yale’s survivorship interest. Plaintiff now asserts that he is entitled to a fee simple absolute ownership in the premises by adverse possession. Plaintiff is wrong that he may extinguish defendant’s property claim, given his unlawful lack of diligence in confirming Yale’s survivorship interest and failure to correct his error. He cannot benefit from his own mistake at defendant’s cost.

Where, as here, cotenants in common are unaware of their respective inheritance interests, and the reason for that mistake is the adverse claimant’s failure to perform the requisite diligent search to confirm the status of an apparent distributee, the claimant cannot possess adversely until they take appropriate action to correct the mistake. Thus, the statutory period for adverse possession commences when the claimant informs Surrogate’s Court or the distributees of the error. Here, that time began to run once plaintiff informed the trust of Yale’s cotenancy interest, when plaintiff allegedly first learned that Yale survived Dorothy. Contrary to the majority view, plaintiff has not held the premises adversely for the entire requisite period and accordingly has failed to establish his claim. Because the majority rewards plaintiff for his failures and sanctions defendant’s loss of their interest in the premises, through no fault of their own or that of their predecessors, I dissent.

(Mike Frisch)