Matter of Neller, 2020 NY Slip Op 08067 [189 AD3d 1599]

December 30, 2020

Appellate Division, Second Department

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In the Matter of Mary Neller, Deceased. Paul P. Neller et al., Respondents; Georgianna Neller et al., Appellants.

John Newman, Huntington, NY, for appellants.

Michael Camporeale (John Z. Marangos, Staten Island, NY, of counsel), for respondents.

In a proceeding pursuant to SCPA 1902 and EPTL 11-1.1, inter alia, to recover possession of real property and damages for the nonpayment of use and occupancy, Georgianna Neller and William Neller appeal from a decree of the Surrogate’s Court, Richmond County (Matthew J. Titone, S.), dated February 22, 2019. The decree, after a nonjury trial, and upon an order of the same court (Robert J. Gigante, S.) dated December 20, 2018, awarding the petitioners damages for use and occupancy, is in favor of the petitioners and against Georgianna Neller and William Neller in the sum of $108,000.

Ordered that the decree is affirmed, with costs.

The petitioners commenced the instant proceeding against Georgianna Neller and William Neller (hereinafter together the appellants), who are distributees of the decedent, seeking, inter alia, to recover possession of the subject real property and damages for the nonpayment of use and occupancy. The Surrogate’s Court directed the appellants to vacate the property. Further, after a nonjury trial, the court entered a decree awarding the petitioners damages for use and occupancy in the sum of $108,000.

We agree with the determination of the Surrogate’s Court awarding damages for use and occupancy in the sum of $108,000. Under the circumstances of this case, the appellants are liable, by operation of statute, for such payments ( see EPTL 11-1.1 [b] [5] [A]; Matter of Seviroli , 31 AD3d 452, 454 [2006]; Johnson v Depew , 38 AD2d 675 [1971]).

The appellants’ remaining contentions are without merit. Rivera, J.P., Cohen, Hinds-Radix and Iannacci, JJ., concur..