2023 New York Laws › RPA - Real Property Actions and Proceedings › Article 12 - Other Actions and Proceedings Between Co-Owners or Owners of Successive Interests › 1211 - Action by Joint Tenant, Tenant in Common or Tenant by the Entirety for Extinguishment of Missing Co-Tenant's Estate Upon Deposit of Its Value.

§  1211.  Action  by  joint  tenant, tenant in common or tenant by the
entirety for extinguishment of missing co-tenant's estate  upon  deposit
of  its value.  1. Where real property is held by two or more persons in
their own right as tenants in common, joint tenants or  tenants  by  the
entirety  and  one  of such tenants is missing under circumstances which
afford reasonable ground to believe that he is dead, the  other  tenants
or  tenant  may  maintain  an  action  in  the supreme court to obtain a
determination of the value of the estate of the missing co-tenant and  a
judgment  extinguishing the estate of the missing co-tenant upon payment
into court for his credit of the amount so determined to be the value of
his estate.
Persons  known  or  unknown  who  are  or  may  be  the  devisees   or
distributees  of a missing co-tenant may be joined as defendants in such
action.
2. (a) Service upon the missing co-tenant shall be made in the  manner
provided  for  service  in  an  action  in  which  the complaint demands
judgment that the person to be served  be  excluded  from  a  vested  or
contingent  interest  in  specific  real  property  in  this  state.  In
addition, the court, at any stage of such action, may direct that notice
of the action be published at or near the  place  where  the  co-tenant,
when last heard from, was known or believed to be.
(b)  The  court may, in its discretion, appoint a guardian ad litem to
represent the interests of the missing co-tenant, or of persons who  are
or may be his devisees or distributees.
3.  A  finding  of  reasonable  ground  to  believe  that  the missing
co-tenant is dead may be made, for purposes of this section, either  (a)
upon  proof  that  the co-tenant has been absent from his usual place of
abode for seven successsive years last past, and that a diligent  search
has  been  made  to discover evidence that he is living and that no such
evidence has been found, or (b) upon proof of other  circumstances  from
which  the probability that the missing co-tenant is dead may reasonably
be inferred, although the period of  his  absence  is  less  than  seven
years, provided that such period is not less than one year.
4.  Relief  extinguishing  the  estate  of the missing person shall be
deemed equitable and shall be granted in the discretion  of  the  court.
However,  no  such  relief shall be granted if the court shall find as a
fact that the missing person  is  dead.  In  such  event,  the  judgment
dismissing  the  complaint shall state such determination, but shall not
be deemed an adjudication of death of the missing person for any purpose
other than the dismissal of the complaint and shall not  be  controlling
in  any  other  action  or  proceeding,  whether or not between the same
parties, in which the fact of death of the missing person is in issue.
5. The finding of reasonable ground to believe that the missing person
is dead shall be made, and the value of the property and of  the  estate
of  the  missing  co-tenant  shall be determined, by the court without a
jury or by a referee.
6. The value of the estates of tenants by the entirety shall be deemed
equal. The proportionate shares of joint tenants and tenants  in  common
shall be determined in like manner as in an action for partition.
7.  Costs  of  the action, and fees and disbursements of a guardian ad
litem appointed to represent the interests of the missing  co-tenant  or
his  devisees  or  distributees shall be assessed against the parties in
such proportions as the court shall direct and the part thereof assessed
against the missing person shall be charged against  the  value  of  the
estate of the missing person.
8.  A judgment extinguishing the estate of the missing co-tenant shall
be conclusive even though the missing person was in fact alive,  or  was
in  fact dead, at the date of the entry thereof, and shall be conclusive

against (a) any person  claiming  under  the  missing  person  by  title
accruing  or  conveyance recorded after the filing of the judgment-roll,
or of the notice of pendency of the action, and (b) any person  claiming
under  the  missing  co-tenant  who  is  made a party to the action. The
judgment shall also have like effect as a conveyance made by the missing
co-tenant or by  the  missing  co-tenant  and  the  other  co-tenant  or
co-tenants,  conveying  the  premises  to the co-tenant or co-tenants in
accordance with their interests resulting from the judgment.  The  court
may  direct  that  an  instrument  of  conveyance in conformity with the
judgment be executed and delivered by the sheriff in  the  name  of  the
co-tenant.