IN RE: the Application of Kenneth Moskow (2026)

The following papers have been considered in the preparation of this decision:

Orders to Show Cause 1

Affirmations in Support 2

Petitions with Exhibits 3

Answers 4

Notices of Cross Motion 5

Affirmations in Opposition to Order to Show Cause and in Support of Cross Motions and Exhibits 6

Memorandums of Law in Support of Cross Motions 7

Affirmations in Support of Respondent's Motion for a Stay 8

Affidavits in Support 9

Reply Affirmations in further Support of Cross Motions 10

Before this court in this miscellaneous proceeding are petitions by Kenneth A. Moskow (petitioner) seeking the following relief: (1) awarding to the petitioner, as trustee of the Thomas E. Moskow Trust and the Irene Moskow Living Trust, a judgment of possession of the real property known as 16 Marlan Court, Sea Cliff, New York 11579; (2) issuing a warrant of eviction for the Sheriff of the County of Nassau to execute said warrant at the earliest possible date; (3) directing the Sheriff of the County of Nassau to execute the aforesaid warrant at the earliest possible date; and (4) awarding a money judgment against Donald Moskow (respondent) and in favor of the petitioner, as trustee of the Thomas E. Moskow Trust and the Irene Moskow Living Trust, in an amount equivalent to the fair use and occupancy of 16 Marlan Court, Sea Cliff, New York 11579 from the date of Thomas E. Moskow's death on December 25, 2021 through the date of delivery of the premises to the petitioner as trustee of the trusts. Donald Moskow (respondent) filed an answer.

By order to show cause dated December 17, 2025 brought by Donald Moskow, the court stayed the proceedings pending the hearing and determination of the application. The return date on the order to show cause was adjourned on consent to February 4, 2026. On that day, the matters were marked submit for decision.

By notices of cross motion, the petitioner seeks partial summary judgment pursuant to CPLR 3212 (e) on the two petitions. Both parties briefed in full their positions on the granting of a preliminary injunction as well as the cross-motions.

At the outset, the respondent correctly notes that the cross motions for summary judgment were made during the period when a stay was in existence and should not be heard. The court, however, in the interest of justice will treat this as a motion for a preliminary injunction, which the parties have argued extensively in their papers.

Irene Moskow and Thomas Moskow were married and had two children, Kenneth A. Moskow (petitioner) and Donald Moskow (respondent). Irene Moskow died on December 29, 2015 and Thomas E. Moskow died on December 25, 2021. It is undisputed that on December 1, 2011, Thomas E. Moskow and Irene Moskow executed three estate planning documents: The Thomas E. Moskow Living Trust (Thomas Trust); The Irene Moskow Living Trust (Irene Trust); and the Donald Moskow Supplemental Needs Trust (SNT).

Irene's Trust provides in Article Sixth, paragraph I, that during the lifetime of her husband, the trustees shall pay to him income and principal not to exceed $5,000 or five percent of the value of the trust each year. Upon the death of her husband, the trust shall terminate and the sum of $5,000.00 dollars each shall be paid to Pauline Majka and Matthew Majka. It further sets forth "[a]ny interest in the property and premises located at 99 Shore Road, Glen Cove, New York 11542 to the Trustee of the Donald Moskow Supplemental Needs Trust." Fifty percent of the balance of the trust, less the value of 99 Shore Road, Glen Cove, NY, is to be paid to the trustee of the SNT for the benefit of Donald. The balance of the trust shall be paid to the petitioner.

Article SIXTH, paragraph II, provides the following: "In the event Grantor's husband, THOMAS E. MOSKOW, survives Grantor and after the retention of the amount by the LIVING TRUST OF IRENE MOSKOW as set forth hereinabove, Grantor directs that the balance of the trust estate shall be distributed to the Trustee of the LIVING TRUST OF THOMAS E. MOSKOW." The retention of the amount refers to the payment of expenses of last illness, funeral and administration expenses.

Thomas's Trust, in turn, gives $20,000.00 each to Pauline Majka and Matthew Majka. The remaining dispositive provisions are identical to the Irene Trust.

The trustee is given in Article TENTH the power to take possession of and/or sell any trust property which includes real property.

The SNT, which is a beneficiary of fifty percent of the Thomas E. Moskow Trust, provides in paragraph 2.3 that

"[i]t should be a priority of the Trustees to ensure and maintain proper housing for the beneficiary. The Trustees shall use Trustees' unfettered discretion to invest the principal or accumulated income in appropriate housing, as an expense to the trust. . . The Trustees are encouraged to invest in property in whatsoever form as will maintain DONALD MOSKOW, in a 'homestead', or in a home-like environment. Homestead or home-like environment shall not include nursing homes or institutions or any facility which would be financed by government entitlements but for the investment made under this section of this trust."

The real property located at 99 Shore Road, Glen Cove, NY was sold, according to the petitioner, prior to the deaths of Irene Moskow and Thomas E. Moskow. The petitioner also reports that the Irene Trust and the Thomas Trust were 50% each owners of 14 Marlan Court, Sea Cliff, New York and 16 Marlan Court, Glen Cove, New York. The petitioner alleges that Donald occupies 16 Marlan Court, he also occupies and has possession of 14 Marlan Court. The respondent alleges that he lived with his parents in the subject premises for the past 23 years (resp. aff. ¶ 5).

The petitioner is the successor trustee of all three trusts. He has been ordered to account as trustee of the Thomas E. Moskow Trust and as trustee of the Irene Moskow Trust by orders dated November 19, 2025. The petitioner was also ordered to account as executor of the estate of Thomas E. Moskow by order dated February 11, 2026.

PRELIMINARY INJUNCTION

Pursuant to CPLR 6301, a preliminary injunction may be granted "where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual...". In order to be entitled to a preliminary injunction, a movant must clearly demonstrate: (1) a likelihood of success on the merits; (2) irreparable injury absent granting of the preliminary injunction; and (3) a balancing of the equities in the movant's favor (Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]; Doe v Axelrod, 73 NY2d 748 [1988]). The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual (Ruiz v Meloney, 26 AD3d 485, 486 [2d Dept 2006]; Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642 [2d Dept 2006]). The decision to grant or deny a preliminary injunction rests in the sound discretion of the court (Doe v Axelrod, 73 NY2d at 750; Ruiz v Meloney, supra).

"To grant injunctive relief, the [respondent] must claim some right to affirmative relief . . .Without a pleading seeking affirmative relief, the court cannot grant injunctive relief" (Matter of Cohen, 5 Misc 3d 869, 872 [Sur Ct., Kings County 2004]).

To establish the necessary likelihood of success on the merits all that is required is of the movant is to make a showing that his claims have prima facie merit (Trimboli v Irwin, 18 AD3d 866 [2d Dept 2005]), not a certainty of success (Tucker v Toia, 54 AD2d 322 [4th Dept 1976]).

A. Likelihood of Success

The underlying proceeding is a proceeding to evict the respondent from a house owned by the Irene and Thomas Moskow Trusts and for an award of costs for fair use and occupancy pursuant to SCPA 1901(2)(h), EPTL 11-1.1(b)(5) and RPAPL 601 et. seq.

The petitioner alleges that during the lifetime of Irene Moskow and/or Thomas Moskow they permitted the respondent to occupy the premises. The petitioner alleges that the respondent never had a lease agreement and never paid any rent and was accordingly a tenant at will. The petitioner stated that pursuant to Real Property Law section 228, a 30 day notice to quit was served upon the respondent and that the respondent has refused to leave.

The petitioner also argues that the respondent's wrongful possession is preventing and prohibiting the petitioner as trustee from taking possession of the property, selling the same and distributing the proceeds in accordance with the terms of the trust.

The respondent filed an answer to the petition. In it, he asserted as an affirmative defense that the instant proceeding contravenes the express terms of the SNT for his benefit. The respondent alleges that the Thomas Trust was to terminate upon the death of Thomas Moskow and 50 percent of the balance of the trust is to be distributed to the SNT. The SNT provides that it should be a priority of the trustee to ensure and maintain housing for the beneficiary and that the sale of the respondent's current residence at 16 Marlan Court, Sea Cliff, New York is antithetical to the grantor's express directive since the sale of the property would render the respondent homeless. The respondent demands judgment dismissing the petition together with the costs and disbursements of the action.

The respondent also argues that until the petitioner accounts for his actions as trustee of the Irene Trust and the Thomas Trust, he is unable to determine what he can afford as alternative housing. As noted previously, the petitioner has been ordered to account.

SCPA 1901 allows the court to authorize or direct the disposition of the decedent's real property or any interest therein "for any of the purposes set forth in the succeeding section." SCPA 1901 (2)(h) provides that the disposition of real property includes to "[e]nter into possession of any real property, receive the rents thereof and apply them as directed by the court." SCPA 1901(3), however is clear in that "[t] term 'fiduciary' as used in this article does not include a trustee. . ." (see also Margaret Valentine Turano, Prac. Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 1901 "this section permits a fiduciary excluding trustees . . . to get court approval to sell, mortgage, exchange or lease the estate real property..."). Hence, the petitioner is not one authorized by statute to seek relief pursuant to Article 1901 of the SCPA.

With regard to the sale of real property, trustees are governed by Article 15 of the SCPA. Specifically, SCPA 1507(1) provides "[i]n the case in which the power to mortgage, sell, lease or exchange real property does not exist under the provisions of EPTL 11-1.5 or for other reasons it is for the best interests of the trust, the court of the county having jurisdiction of the trust may on such terms and conditions as seem just and proper authorize any testamentary trustee to mortgage, sell, lease or exchange real property or any part thereof belonging to the trust." SCPA 1501 sets forth that the provisions of this act apply to the following trusts, which includes, "[a] lifetime trust of which the supreme court would also have jurisdiction" (SCPA 1507 [1] [c]). The foregoing was added in 1980 to include lifetime trusts. SCPA 1507 was last amended in 1968 and never amended to reflect that trustees other than testamentary trusts could seek relief. The court need not address this issue, however, as the Thomas Trust specifically gave the petitioner the authority to take possession of and sell the real property.

Further, EPTL 11-1.1 (b) (5) allows the fiduciary:

"in the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary. . . or in the will, deed or other instrument, every fiduciary is authorized. . . with respect to any property or any estate therein owned by an estate or trust, except where such property or any estate therein is specifically disposed of: (A) To take possession of, collect the rents from and manage the same. . . [and] (B) To sell the same at public or private sale, and on such terms as in the opinion of the fiduciary will be most advantageous to those interested therein."

The property in question was not specifically devised under either the Thomas or Irene Trust.

Under the circumstances, the respondent has shown a likelihood of success in that the petition would be dismissed as not properly before the court and because the petitioner already had the authority to sell the property without court approval.

The movant must also demonstrate irreparable injury absent the granting of the preliminary injunction and a balancing of the equities that favors his position (Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]). Ordinarily, irreparable harm cannot be shown where the injury sought to be avoided could be adequately compensated with money damages (Soundview Cinemas, Inc. v ACI Soundview, LLC, 149 AD3d 1121 [2d Dept 2017]). However, where, as here, the movant claims entitlement to a specific property, the "subject of the action" requirement of CPLR 6301 is satisfied and a preliminary injunction may be imposed (Credit Agricole Indosuez v Rossiysliy Kredit Bank, 94 NY2d 541 [2000]; Punwaney v Punwaney, 148 AD3d 489 [1st Dept 2017]).

Finally, the balancing of the equities will favor the respondent where the irreparable injury to be sustained by the respondent is more burdensome than the harm caused the petitioner through the imposition of the injunction (Burmax Co. v B & S Indus., 135 AD2d 599 [2d Dept 1987] citing Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d 1021 [3d Dept 1979]). The harm of evicting the respondent from the home where he has lived for the past 23 years is far more burdensome than any harm the petitioner may suffer through the imposition of the injunction.

The motion for a stay/preliminary injunction is GRANTED.

This constitutes the decision and order of the court.

Dated: July 9, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court

David P. Sullivan, J.