                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 26, 2015                   519254
________________________________

In the Matter of the Estate
   of BERNARD BRAUNSTEIN,
   Deceased.

SUE ANN BRAUNSTEIN,
                      Respondent;           MEMORANDUM AND ORDER

EDWIN L. BRAUNSTEIN, as
   Executor of the Estate of
   BERNARD BRAUNSTEIN,
   Deceased,
                    Appellant.
________________________________


Calendar Date:   January 12, 2015

Before:   McCarthy, J.P., Lynch, Devine and Clark, JJ.

                              __________


      Lipsitz Green Scime Cambria, LLP, Buffalo (John Collins of
counsel), for appellant.

      DeFilippo Law Firm, PLLC, Elmira (Gerald E. DeFilippo of
counsel), for respondent.

                              __________


Clark, J.

      Appeal from an order of the Surrogate's Court of Chemung
County (Hayden, S.), entered April 8, 2014, which granted
petitioner's application, in a proceeding pursuant to SCPA 2102,
to transfer certain properties that had been devised to her by
decedent's will.

      On October 28, 2004, Bernard Braunstein (hereinafter
decedent) executed his last will and testament. Petitioner is
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decedent's daughter and, pursuant to article IV of his will, was
to be devised three parcels of real property in the Town of
Elmira, Chemung County (hereinafter referred to as the Elmira
parcels). Petitioner presently resides in the house situated on
one of those parcels. Notwithstanding this devise, decedent
deeded the Elmira parcels to Braunstein Family L.P. in 2007.
Decedent was named as a limited partner in Braunstein Family and
had a 99% ownership interest in it. ELB Management, LLC – which
is owned by respondent, decedent's son and the executor of
decedent's estate – owns the remaining 1% of Braunstein Family
and is its general partner.

      Decedent passed away on June 29, 2012, after which his will
was admitted to probate and letters testamentary were issued to
respondent. Petitioner then commenced this proceeding pursuant
to SCPA 2102 and sought an order directing, among other things,
that respondent transfer the Elmira parcels to her. Respondent
opposed that relief, arguing that the Elmira parcels were not
part of decedent's estate because they had been deeded to
Braunstein Family. Surrogate's Court disagreed, declaring that
the Elmira parcels remained part of the estate and that they must
pass under the terms of decedent's will. Respondent now appeals.

      Respondent contends that the devise of the Elmira parcels
failed because they had "been given away, lost or destroyed
during [decedent's] lifetime," a situation referred to as
ademption (Matter of Wright, 7 NY2d 365, 367 [1960]; see EPTL 3-
4.3; Matter of Brann, 219 NY 263, 267-268 [1916]; Matter of
Powers, 166 AD2d 534, 535 [1990]). Initially, because the
disposition of the Elmira parcels addressed "segregated item[s]
which gave specificity to the [disposition], and no alternative
to the [disposition] was provided by the decedent," the
principles of ademption are applicable (Matter of Powers, 166
AD2d at 535; see EPTL 1-2.17, 3-4.3). Those principles are set
forth in EPTL 3-4.3, which states that "[a] conveyance,
settlement or other act of a testator by which an estate in his
property, previously disposed of by will, is altered but not
wholly divested does not revoke such disposition, but the estate
in the property that remains in the testator passes to the
beneficiaries pursuant to the disposition. However, any such
conveyance, settlement or other act of the testator which is
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wholly inconsistent with such previous testamentary disposition
revokes it." Ademption will not lightly be found under EPTL 3-
4.3, which is construed strictly given that its terms permit a
testator to nullify dispositions without engaging in the
elaborate formalities ordinarily required to revoke his or her
will, either in whole or in part (see EPTL 3-4.1; Matter of
Maruccia, 54 NY2d 196, 204-205 [1981]).

      After reviewing these principles, we find that an ademption
has occurred and we reverse. There is no dispute that decedent
conveyed the Elmira parcels to Braunstein Family and, as such, he
no longer owned them because "a partner [in a limited
partnership] has no interest in specific partnership property"
(Partnership Law § 121-701). Although the Elmira parcels were
deeded to Braunstein Family as part of an effort at estate
planning, the intention of decedent in making the transfers is
irrelevant to our analysis as to whether an ademption has
occurred (see Matter of Wright, 7 NY2d at 368-369; Matter of
Brann, 219 NY at 268). Thus, because the conveyance of the
Elmira parcels to Braunstein Family "wholly divested" the estate
of them, we are constrained to find that, at the time of probate,
the testamentary disposition of the Elmira parcels had adeemed
because the parcels were not available for disposition to
petitioner (EPTL 3-4.3; see Matter of Brann, 219 NY at 267).

      Petitioner's remaining argument has been considered and
found to be without merit.

     McCarthy, J.P., Lynch and Devine, JJ., concur.


      ORDERED that the order is reversed, on the law, with costs,
and petition dismissed.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
