Estate of Coba v. Hernandez

Estate of Coba v Hernandez 2026 NY Slip Op 05517 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Estate of Gustavo Marcel Coba, etc., appellant, v Humberto Hernandez, respondent. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-09653, (Index No. 719238/24) Francesca E. Connolly, J.P. Valerie Brathwaite Nelson Barry E. Warhit James P. McCormack, JJ. Siegel & Siegel, P.C., New York, NY (Michael D. Siegel of counsel), for appellant. Pitchayan & Associates, P.C., Jackson Heights, NY (Pat B. Pitchayan of counsel), for respondent. [*1] DECISION & ORDER In an action for the partition and sale of real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Karina E. Alomar, J.), entered August 5, 2025. The order denied the plaintiff's motion to enforce the terms of a stipulation of settlement dated December 5, 2024, and to appoint a referee to sell the subject real property. ORDERED that the order is affirmed, with costs. Gustavo Marcel Coba (hereinafter the decedent) and the defendant allegedly owned certain real property located in Bayside as tenants in common. This action was commenced purportedly by the estate of the decedent for the partition and sale of the property. An attorney for the plaintiff and an attorney for the defendant entered into a stipulation of settlement dated December 5, 2024, which provided for the sale of the plaintiff's purported interest in the property to the defendant by April 1, 2025. The stipulation provided that if the defendant defaulted under the agreement, the plaintiff could move to appoint a referee and complete the partition process. When the sale did not occur by the date provided in the stipulation, the plaintiff moved to enforce the terms of the stipulation and to appoint a referee to sell the property. In support of the motion, the plaintiff submitted, among other things, a certificate from the Queens County Surrogate's Court certifying that letters of administration were issued to nonparties Yury Acosta and Maria Carlota Coba Carpio appointing them as administrators of the decedent's estate, with certain limitations not relevant here. The defendant opposed the motion on the ground that the plaintiff lacked the legal capacity to enter into the stipulation or to sell the decedent's estate's interest in the property. In an order entered August 5, 2025, the Supreme Court denied the plaintiff's motion. The plaintiff appeals. "[A] stipulation is generally binding on parties that have legal capacity to negotiate, do in fact freely negotiate their agreement and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally on the record in open court" (McCoy v Feinman, 99 NY2d 295, 302; see CPLR 2104). Here, the plaintiff's own submissions raised issues of fact as to the legal capacity of the plaintiff's attorney to enter into a stipulation on behalf of the decedent's estate and to sell any interest the decedent's estate may have in the subject property (see Grosso v Estate of [*2]Gershenson, 33 AD3d 587, 587; see generally Baker v Restaurant Depot, 149 AD3d 675, 676). Accordingly, the Supreme Court properly denied the plaintiff's motion to enforce the terms of the stipulation and to appoint a referee to sell the property. CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court