IN RE: the Application of Lois M. Rosenblatt (2026)

In this proceeding, petitioner, JPMorgan Chase Bank, National Association ("Chase"), seeks an Order of the court pursuant to CPLR 5015(a)(3), vacating a Decree dated December 24, 2024, and upon vacatur of the Decree, a subsequent Order pursuant to CPLR 5015(a)(5), vacating the Judgment entered as a result thereof against Chase on August 5, 2025. In lieu of filing an answer, respondent, the Public Administrator of Queens County ("Public Administrator") has moved to dismiss the petition pursuant to CPLR 3211(a)(1) and (7) for failure to state a cause of action and based upon documentary evidence.

By way of background, the decedent, Pauline Kozerska, died on January 29, 2020. At the time of her death it is undisputed that the decedent was the sole owner of two accounts in Chase. These accounts had originally been created as joint survivorship accounts with her father who had predeceased the decedent in 2016. About one year later, the following disturbing facts unfolded.

On January 27, 2021 and February 6, 2021, Chase sent correspondence, addressed to the decedent and her father, notifying of suspicious activity on the accounts and of cancelled transactions. A few days later, on February 9, 2021, Chase closed both accounts and placed them into a new single account in the name of the decedent. Despite having knowledge that both depositors were deceased, and of potential fraudulent activity, Chase on March 23, 2021, issued a cashier's check payable to decedent and/or her father in the amount of $94,476.88 which constituted the full balance of the account. While it appears some internal questions were raised about a stop payment placement, the cashier's check was presented at a TD Bank branch on April 1, 2021 and negotiated.

The Public Administrator was appointed temporary administrator of the decedent's estate on December 3, 2023. On March 11, 2024, in response to a subpoena, Chase informed the Public Administrator of the above information, including the issuance and negotiation of the cashier's check, that all of the decedent's accounts had been closed, and that there was a $0 balance.

Thereafter, the Public Administrator timely commenced a petition for turnover of assets against Chase pursuant to SCPA 2103. A citation issued returnable on November 21, 2024. Chase did not appear on the return date, and defaulted in answering the petition.

On December 24, 2024, a Decree was entered, directing Chase to turn over $94,476.68 plus interest at the rate of 9% per annum from March 23, 2021 to the date of the Decree. A resulting Judgment was entered on August 5, 2025 against Chase in the sum of $126,461.57.

The current petition and motion are now sub judice.

Here, Chase asserts its main theory of recovery is based upon CPLR 5015(a)(3) which generally provides that a court may relieve a party from a judgment or order on the grounds of "fraud, misrepresentation or other misconduct". The specific "fraud" upon which Chase basis its prayer for relief is the Public Administrator's alleged misrepresentation that Chase was in possession of the disputed funds at the time the turnover proceeding was commenced.

A party seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, as here, must establish a reasonable excuse for the default and a potentially meritorious defense to the accident (see Matter of Mission Field Church, 214 AD3d 981 [2d Dept 2023]; Wells Fargo Bank, N.A. v Arratia; 207 AD3d 598 [2d Dept 2022]; CitiMortgage, Inc. v Nunez, 198 AD3d 865 [2d Dept 2021]).

Initially, the Court notes that the current proceeding is procedurally improper as CPLR 5015 requires a motion as the vehicle to vacate a judgment or order, and not a petition.

In any event, and disregarding the procedural irregularities as both sides have argued the present motion on its merits, the petition fails to set forth any excuse, let alone one that could be classified as reasonable, for Chase's failure to either appear on the citation return date or file an answer to the turnover petition. In fact, paragraph 11 of Chase's petition admits that "on or about October 17, 2024, Chase received a copy of the signed Citation by mail."

Chase utterly fails to proffer a reasonable excuse for its default. Indeed it acknowledges same but, uniquely, appears to posit that its defense to the proceeding is so meritorious its failure to appear is a trivial misstep and understandable. However, that is not the controlling law on these facts. Conversely, an order may not be vacated on the grounds of fraud where, as here, the moving party had knowledge of the fraud before the order was issued (see Matter of Perrenod, 243 AD3d 794 [2d Dept 2025]; Citimortgage v Roque, 202 AD3d 1041 [2d Dept 2022]).

Regrettably, the petition also does not demonstrate a potentially meritorious defense. Chase pleads that it was not in possession of the funds at the time of the service of the citation - is not in possession of them at present - and thus, cannot comply with the Decree.

While it is undisputed that petitioner is no longer in possession of the funds, the petition does not establish that Chase acted in accordance with general banking rules or general clearing house rules to protect the decedent's asset (see Redgrave Elec. Maintenance, Inc. v Capital One., N.A., 161 AD3d 801 [2d Dept 2018]). In fact, a review of Chase's records submitted in support of the motion provides that on January 26, 2021, Chase was alerted to fraudulent activity on the decedent's account, and on March 23, 2021, it received actual notice of both depositors' death. Despite having this knowledge, it issued a cashier's check payable to either and mailed it to their last known address. Consequently, Chase failed to meet its burden of establishing that it exercised ordinary care to protect the decedent's assets. Accordingly, Chase failed to establish a potentially meritorious defense to the turn over proceeding.

The gravamen of Chase's argument appears to be that the Public Administrator perpetrated a fraud on the Court because at the time the turnover proceeding was commenced, Chase had informed the Public Administrator it had distributed the funds via cashier check and TD Bank had subsequently negotiated it. The logical defect in such reasoning is astounding. It is akin to Jesse James declaring impunity from arrest on bank robbery charges because he "got rid of the loot!"

By its own admission, Chase had possession of decedent's assets and distributed them to a third-party after her death without authority to do so and failed to appear on the return date of process. The Public Administrator, by its petition and on the record, established the above facts and its prima facie entitlement to the return of the funds (see SCPA 2103; Matter of Voyiatgis, 110 AD3d 911 [2d Dept 2013]; Matter of Murray, 84 AD3d 106 [2d Dept 2011]; Matter of Hartofilis, 2016 NY Slip OP 31243[U][Sur Ct New York Cnty 2016]). Wrongful transfer of a decedent's assets is not a defense, but establishes liability of the transfer, a tenet that escapes petitioner herein.

Consequently, the petition does not set forth a reasonable excuse for Chase's default or a potentially meritorious defense, the petition fails to set forth a cause of action under CPLR 5015(a)(3).

The second branch of the petition seeks to vacate the Judgment entered on the turnover Decree issued by the Court. Vacatur of an order or judgment pursuant to CPLR 5015(a)(5) is warranted where there has been "reversal, modification or vacatur of a prior judgment or order upon which it is based" (see Bank of NY Mellon Trust Co., N.A. v Ahmed, 243 AD3d 851 [2d Dept 2025]).

Since Chase failed to set forth any grounds upon which it was entitled to vacatur of the Decree, the petition fails to state a cause of action to vacate of the Judgment pursuant to CPLR 5015(a)(5).

The branch of the motion seeking to dismiss the petition based on documentary evidence pursuant to CPLR 3211(a)(1) is denied as moot in light of the above.

Accordingly, the motion to dismiss the petition pursuant to CPLR 3211(a)(7) is granted, and the petition is dismissed.

This is the Decision and Order of the Court.

The Clerk of the Court is directed to forward a copy of this Decision and Order to all parties who have appeared in this proceeding.

Dated: June 18, 2026

ACTING SURROGATE

Peter J. Kelly, S.