Opinion
Argued April 29, 1999
June 7, 1999
In an action, inter alia, to declare the rights of the parties in the assets of an estate, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered December 18, 1998, which denied their motion for partial summary judgment declaring that, at his death, the decedent was the sole owner of two corporations.
Migliore Infranco, P.C., Commack, N.Y. (Joseph O. Infranco and John F. Clennan of counsel), for appellants.
Levin Belsky Ross Daniels, LLP, Garden City, N.Y. (Michael Lowe of counsel), for respondents.
DAVID S. RITTER, J.P., FRED T. SANTUCCI, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion for partial summary judgment is granted.
It is well settled that the Supreme Court and the Surrogate's Court have concurrent jurisdiction over decedents' estates ( see, N Y Const art VI; Matter of Mizrahi, 178 A.D.2d 349; Burmax Co. v. B S Indus., 135 A.D.2d 599; McCoy v. Bankers Fed. Sav. Loan Assn., 131 A.D.2d 646). The Supreme Court ordinarily refrains from exercising its concurrent jurisdiction ( see, Matter of Mizrahi, supra; Weizenecker v. Weizenecker, 140 A.D.2d 517; Dunham v. Dunham, 40 A.D.2d 912). Here, however, since the issue presented to the Supreme Court was apparently never presented to the Surrogate's Court, the Supreme Court properly continued to exercise its jurisdiction ( see, EPTL § 5-1.1-A Est. Powers Trusts[c][4]; H G Operating Corp. v. Linden, 151 A.D.2d 898; Burmax Co. v. B S Indus., supra; Matter of Wallach, 130 A.D.2d 495).
Furthermore, the plaintiffs are entitled to partial summary judgment declaring that the decedent was, at his death, the sole owner of the two corporations at issue, since the defendants failed to present any evidence to refute the plaintiffs' prima facie showing in this regard ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Upon the resolution of the remaining causes of action, a judgment should be entered declaring that at the time of his death the decedent was the sole owner of the subject corporations.