IN RE: the Administration Proceeding ESTATE OF Jerome T. STACKOWITZ (2021)

Probate Advance has petitioned to withdraw the assignment which was filed in this Court on June 17, 2020. The stated basis for their request to withdraw this filed assignment is that the matter has been settled outside of Court, so the assignment is now moot.

The motion was returnable before the Court on December 21, 2020. Appearing were Thomas A. Saitta, Esq., counsel for Probate Advance, LLC, and Amanda L. Giannone, Esq., retained counsel for the estate. For the reasons set forth below, the Court finds this matter is not moot, but that even if it were, an exception to the mootness doctrine requires it be maintained.

Surrogate's Court is a court of equity. The discretionary authority of the Court specifically set forth in EPTL § 13-2.3 and SCPA § 2112, to deal with matters like this one is a clear example of that equitable jurisdiction.

The Court exercised its discretion in converting this matter to one on its own initiative, pursuant to EPTL § 13-2.3 and SCPA § 2112. The original petition is subsumed by the Court's action. The statutes and case law give this Court authority and responsibility with respect to the assignment and its terms. That authority and responsibility are not altered by the actions of the assignor or the assignee. The assignee cannot now escape this Court's scrutiny by attempting to withdraw what is clearly within the Court's purview.

Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances.” Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 (1980). However, an exception to the mootness doctrine permits a court to address a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question. See e.g., People ex rel. McManus v Horn, 18 NY3d 660, 663-664 (2012); City of New York v Maul, 14 NY3d 499, 507 (2010); Clyne, supra at 714-715.

That this issue is likely to recur is self-evident: the Court had two identical assignments to this assignee filed on the same date. Undoubtedly, Probate Advance has entered into untold numbers of these transactions across New York State. The consequences of this assignment transaction are certainly substantial and novel to the assignors, driven to this decision by economic exigencies amid the COVID-19 pandemic caused by the aptly named “novel” corona virus. Probate Advance has stressed its own substantial interest in this transaction.

The motion by Probate Advance, LLC to withdraw this assignment is denied. Probate Advance, LLC, is directed to provide any responsive papers to the Court's pending action to review this assignment by close of business on February 19, 2021.

This Decision constitutes the Order of the Court.

David H. Guy, S.