Jane Springer, appellant, v. Jacqueline McGinn, etc., respondent, et al., defendant. (2026)

Submitted—November 24, 2025

DECISION & ORDER

C/

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated February 6, 2023.  The order denied the plaintiff's motion pursuant to CPLR 3211(a) and (b) to dismiss the counterclaims and certain affirmative defenses of the defendant Jacqueline McGinn, denied the plaintiff's application for leave to amend the complaint, and granted the cross-motion of the defendant Jacqueline McGinn pursuant to CPLR 325(e) to remove the action to the Surrogate's Court, Suffolk County.

ORDERED that the appeal from so much of the order as denied the plaintiff's application for leave to amend the complaint is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2] ), and we decline to grant leave to appeal (see id. § 5701[c];  Weissman v. Weissman, 103 AD3d 886);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Jacqueline McGinn.

In October 2021, the plaintiff commenced this action against the defendant Jacqueline McGinn (hereinafter the defendant), individually and as executrix of the estate of Robert Springer (hereinafter the decedent), and another defendant, asserting causes of action, inter alia, to recover damages for breach of contract and to impose a constructive trust.  The plaintiff alleged, among other things, that the defendant received the proceeds of certain life insurance policies maintained by the decedent in violation of a divorce settlement agreement between the plaintiff and the decedent.  The defendant joined issue and asserted counterclaims for declaratory and injunctive relief and affirmative defenses.

In March 2022, the plaintiff moved pursuant to CPLR 3211(a) and (b) to dismiss the defendant's counterclaims and certain affirmative defenses.  The defendant thereafter cross-moved pursuant to CPLR 325(e) to remove the action to the Surrogate's Court, Suffolk County.  In an order dated February 6, 2023, the Supreme Court, inter alia, denied the plaintiff's motion and granted the defendant's cross-motion.  The plaintiff appeals.

“The Supreme Court and the Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate” (Rodriguez v. Rodriguez, 229 AD3d 824, 826 [internal quotation marks omitted];  see Goodwin v. Rice, 79 AD3d 699, 700).  “However, wherever possible, all litigation involving the property and funds of a decedent's estate should be disposed of in the Surrogate's Court” (Rodriguez v. Rodriguez, 229 AD3d at 826 [internal quotation marks omitted];  see Nichols v. Kruger, 113 A.D.2d 878, 878–879).  Since the present action involved the property and funds of the decedent's estate, the Supreme Court properly granted the defendant's cross-motion pursuant to CPLR 325(e) to remove the action to the Surrogate's Court, Suffolk County (see Joffe v. Widelitz, 134 AD3d 766, 767;  Cipo v. Van Blerkom, 28 AD3d 602, 602).

The parties' remaining contentions either are without merit or have been rendered academic in light of our determination.

BARROS, J.P., VOUTSINAS, VENTURA and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court