CIPO v. VAN BLERKOM (2006)

In an action, inter alia, to set aside amendments to an inter vivos trust, the plaintiff appeals from an order of the Supreme Court, Queens County (Dorsa, J.), dated September 9, 2005, which granted the defendant's motion pursuant to CPLR 325(e) to transfer this action to the Surrogate's Court, Queens County.

ORDERED that the order is affirmed, with costs.

 The Supreme Court and the Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate (see Gaentner v. Benkovich, 18 A.D.3d 424, 428, 795 N.Y.S.2d 246).   However, “[w]herever possible, all litigation involving the property and funds of a decedent's estate should be disposed of in the Surrogate's Court” (Nichols v. Kruger, 113 A.D.2d 878, 878-879, 493 N.Y.S.2d 605, quoting Hollander v. Hollander, 42 A.D.2d 701, 345 N.Y.S.2d 592;  cf. Gaentner v. Benkovich, supra ).   Here, the Supreme Court providently exercised its discretion in granting the defendant's motion pursuant to CPLR 325(e) to transfer the present action to the Surrogate's Court because the wrongs alleged by the plaintiff concern the distribution of a decedent's estate (see Nichols v. Kruger, supra;  cf. Gaentner v. Benkovich, supra ).   Moreover, the Surrogate's Court has jurisdiction over this matter because it affects a lifetime trust (see SCPA 209[6];  see generally Matter of 1605 Book Ctr. v. Tax Appeals Tribunal of State of N.Y., 83 N.Y.2d 240, 244, 609 N.Y.S.2d 144, 631 N.E.2d 86, cert. denied 513 U.S. 811, 115 S.Ct. 61, 130 L.Ed.2d 19;  Ragucci v. Professional Contr. Serv., 25 A.D.3d 43, 803 N.Y.S.2d 139;  Matter of Elgut v. County of Suffolk, 1 A.D.3d 512, 513, 768 N.Y.S.2d 476).