Learn About the Law
Get help with your legal needs
IN RE: the Application of Efthimia LEONARDI as Limited Administrator of the Estate of Georgia Kokotos, Deceased, Pursuant to SCPA § 2103 for the Discovery and Turnover of Property and Issuance of Temporary Restraining Order.
Georgia Kokotos, the decedent, passed away intestate on April 16, 2015, leaving her children, Efthimia Leonardi and Steven Kokotos as her distributees and heirs at law. By petition dated November 14, 2017, Efthimia, as limited administrator, sought the turnover and conveyance of real property located in Flushing, New York to her for the purposes of intestate succession.
The petitioner alleges that on December 18, 2014, the subject real property was transferred by the decedent to 146-03 28 Ave LLC., a New York Limited Liability Company (the LLC) in which the decedent was the sole member. Shortly thereafter, petitioner contends the decedent's interest in the LLC was improperly transferred by Steven, as agent under a power of attorney and statutory gifts rider, to his wife, respondent Catherine Kokotos.
Nine months later, Catherine, as sole member of the LLC, executed a deed conveying the property from the LLC to herself and six months thereafter she took out a mortgage on the property in the sum of $200,000.00.
The ensuing Order to Show Cause contained a provision restraining Steven and Catherine from “transferring, selling, conveying or in any way further encumbering or mortgaging the [subject] premises” or “accessing, drawing down or withdrawing any funds or proceeds” from the mortgage taken by Catherine. Respondents, through their attorneys at that time, Farrell Fritz, responded to the petition with an extensive motion to dismiss that was ultimately withdrawn, and finally filed their answer in April of 2018. Neither petitioner nor the respondents demanded a jury trial.
Respondents now seek to vacate the restraining order on the subject premises pursuant to CPLR 6314 and further seek permission to file a late jury demand pursuant to CPLR 4102(e). As expected, the motion is vigorously opposed.
A motion to vacate a preliminary injunction is addressed to the sound discretion of the court and may be granted upon “compelling or changed circumstances that render continuation of the injunction inequitable.” (Thompson v 76 Corp., 37 A.D.3d 450, 830 N.Y.S.2d 564 [2d Dept 2007]).
As a preliminary matter, respondents’ attempt to characterize the proceeding as one seeking a money judgment is completely at odds with the relief sought by the petition which clearly seeks title to be restored. All legal arguments based on such theory are entirely without merit and warrant no further discussion.
Additionally, respondents’ reiteration of their previous arguments made in opposition to petitioner's summary judgment motion, of which the Court is well-aware, do not present a compelling basis to lift the restraining provision on the property, and in fact, militate to the contrary as the motion resulted in a finding that issues of fact requiring a trial existed.
In essence, respondents’ argument for vacatur of the restraining provision rests upon their desire to avail themselves of “historically-low” interest rates that are available to refinance and improve the subject real property, and their unshakable belief that this matter will ultimately be decided in their favor.
Suffice it to say, the respondents’ desire to delve into a home improvement project before interest rates increase does not present a convincing reason for the Court to deviate from the status quo, irrespective of respondents’ unwavering confidence in the strength of their case. Again, the Court has already determined that a trier of fact may well have a different perspective on the matter.
Nor does the fact that three and a half years have elapsed since the restraining provision was put in place tilt the equities in respondents’ favor. The prolonged duration of this case and consequential continued restraint on the property, is entirely and equally attributable to the conduct of the litigants who have chartered a course of excessive and oftentimes unnecessary motion practice, constant adjournment requests, procedural squabbles, delays incident to a change in attorneys, and an inability and seeming unwillingness to comply with countless discovery orders set by this Court.
Accordingly, the branch of the motion which seeks to vacate the temporary restraining order that is in place is denied.
As to the branch of the motion which seeks leave to file a late jury demand, SCPA 502[a] requires that each respondent demanding a jury trial must do so in their answer or objections. A petitioner who desires a jury must then make such demand within six days after service of the answer or the objection upon him (see id.). Failure to timely file a jury demand results in a waiver of the right to demand same (SCPA 502[a]).
Subsequent to the withdrawal of their motion to dismiss, the respondents filed their answer with the Court on April 5, 2018. The comprehensive answer included several affirmative defenses, was personally verified by both respondents, and did not include a jury demand. The petitioner also did not elect to file a jury demand in her own right within the six day period that followed its service. Thus, both parties are deemed to have waived a jury.
However, CPLR 4102(e) gives the Court discretion to relieve a party from failing to file a timely jury demand, provided no undue prejudice to the rights of another party would result. A motion for such relief must be based upon a factual showing that the earlier waiver of that right was the result of either inadvertence or other excusable conduct indicating a lack of intention to waive such right (see Skelly v Sachem Cent. Sch. Dist., 309 A.D.2d 917, 766 N.Y.S.2d 108 [2d Dept 2003]). Generally, the failure to timely file a jury demand will not be excused where it was a strategic decision as opposed to unintentional or inadvertent (see Green v Siben, 104 A.D.2d 923, 480 N.Y.S.2d 543 [2d Dept 1984]; Matter of Thek, 1992 NYLJ Lexis 7825 [Surr Ct New York County 1992]).
Here, counsel's lone contention is that respondents’ former counsel “neglected” to include a jury demand in the answer. Notably, a factual affidavit to this effect has not been submitted by the respondents or their former attorneys (see Keller v Keller, 66 A.D.2d 960, 411 N.Y.S.2d 701 [3d Dept 1978]; L.T.B. Constr. Co. V. Port of Oswego Auth., 154 A.D.2d 903, 547 N.Y.S.2d 162 [4th Dept 1989]).
Further, this bald claim is belied by the sophisticated level of the papers that have been filed by respondents’ former attorneys and their reputation as highly experienced estate practitioners, well-versed in Surrogate's Court practice. Based upon the Court's familiarity with former counsel and the particulars of this matter, the Court has every reason to believe that the exclusion of the jury demand was anything but inadvertent.
Yet even if the Court were to credit the above assertion, as well as the respondents’ conclusory claim that the petitioner will not be prejudiced, granting such relief is nevertheless unwarranted based on the circumstances of this case.
Where, as here, an inordinate amount of time has passed since the demand for a jury trial was due, whether premised upon a misunderstanding of the law, inadvertence, poor legal advice, or otherwise, courts will not permit the filing of a late demand regardless of the lack of prejudice to the opposing party (see Matter of Bosco, 141 A.D.2d 639, 640, 529 N.Y.S.2d 541 [2d Dept 1988]; Matter of Labita, 19 Misc 3d 1142(A), 867 N.Y.S.2d 17 [Surr Ct Nassau County 2008]; Matter of Morelli, 47 Misc 3d 1213(A) [Surr Ct Kings County 2015]; see also, e.g., Fils v Diener, 59 A.D.2d 522, 397 N.Y.S.2d 14 [2d Dept 1977]).
In this proceeding, over three years have elapsed since an answer was filed; and over two years have elapsed since it finally occurred to current counsel, equally well-versed in estate litigation, to seek a jury. Such relief was never requested by the petitioner and is made during a global pandemic the effects of which would inevitably lead to more disagreement and controversy between the parties regarding selection and protocols to be followed.
Given the inadequate factual demonstration, the inordinate and unexplained delay that has occurred, and the fact that respondents’ request to now convene a jury could not be more ill-timed, the branch of the motion seeking leave to file a late jury demand is denied.
The petitioner is directed to file a note of issue within 45 days of this decision and order.
This is the decision and order of the Court.
Peter J. Kelly, S.
Response sent, thank you
Docket No: File No. 2016-3855/B
Decided: August 18, 2021
Court: Surrogate's Court, New York,
Search our directory by legal issue
Enter information in one or both fields (Required)
FindLaw for Legal Professionals
Search our directory by legal issue
Enter information in one or both fields (Required)