
    [746 NYS2d 228]
    Estate of Murray Hershkowitz, Respondent, v Evelyn Walker, Also Known as Everlina Walker, Appellant.
    Supreme Court, Appellate Term, Second Department,
    May 17, 2002
    APPEARANCES OF COUNSEL
    
      Patrick J. Leddy, New York City, for appellant. Joel S. Charleston, North Woodmere, for respondent.
   OPINION OF THE COURT

Memorandum.

Order unanimously reversed with $10 costs, and motion to vacate the default judgment, dismiss the petition and restore tenant to possession granted.

The petitioner, an estate of a decedent who was a Florida domiciliary, commenced the instant holdover proceeding to recover possession of a cooperative apartment located within Kings County, New York. While the estate’s personal representatives were apparently duly appointed by a Florida court having jurisdiction over the estate, the estate’s personal representatives apparently did not obtain ancillary letters from New York appointing them as ancillary fiduciaries (see, SCPA 206 [1]; 1602 [1]; 1607, 1610 [1]). Inasmuch as an estate is not a legal entity, and any action by an estate must be by an executor or administrator in his representative capacity (Estate of Fenton v Rich, NYLJ, Apr. 2, 2001, at 34, col 6 [App Term, 2d & 11th Jud Dists]; 100 W. 72nd St. Assoc. v Murphy, 144 Misc 2d 1036; see, EPTL 11-3.1) and this proceeding was not brought by an executor or administrator duly authorized to act within New York, and none has been made a party, tenant’s motion to vacate the default judgment, dismiss the petition and restore her to possession should have been granted.

Patterson, J.P., Golia and Rios, JJ., concur.  