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IN RE: the Applications of Lois M. ROSENBLATT, Public Administrator of Queens County, as Temporary Administrator of the Estate of Ammie Oglesby, Deceased, To Vacate Deeds and Turnover Real Property.
Petitioner seeks inter alia, the return to the estate of two parcels of real property contending that the instruments purporting to transfer title to the subject premises are void ab initio.
The subject premises were owned by the decedent, Ammie Oglesby, who died on February 15, 2017. Subsequent to her passing, Robert Boyd (Boyd) sought probate of an instrument dated February 27, 2015 purporting to be decedent's last will and testament. The instrument provided for the entirety of the decedent's residuary estate to be distributed to Boyd. As the probate of the instrument was unchallenged, letters testamentary were issued to Boyd on February 2, 2018.
A proceeding was thereafter commenced to vacate the above probate decree on the basis that Boyd had omitted distributees on his petition, and therefore personal jurisdiction had not been obtained over all of the necessary parties in the underlying proceeding (SCPA § 203). By decision dated May 20, 2020 the Court vacated its prior decree of probate, revoked the letters testamentary issued to Boyd, directed an accounting, and appointed the Public Administrator as temporary administrator of the decedent's estate (SCPA § 209).
In the instant turnover proceedings, petitioner alleges that Boyd entered into two fraudulent transfers of decedent's real property. First, on September 27, 2017, prior to his appointment as fiduciary, Boyd “as sole heir of the Estate of Ammie Oglesby,” transferred decedent's Cambria Heights property to respondent SHC Equities LLC (SHC), an entity whose sole member is respondent, Anthony Goscott (Goscott). On June 22, 2018, under the auspices of the fraudulent probate decree, Boyd, “as Executor,” transferred decedent's interest in a St. Albans property to respondent MRAG Development, LLC (MRAG), another entity in which Goscott is the sole member. MRAG obtained a $300,000.00 mortgage on the property from respondent, Amida Special Opportunity Investments LLC (Amida).
Petitioner, as temporary administrator, now seeks to nullify and void the aforesaid deeds and mortgage and return the real property to decedent's estate. Respondents SHC, MRAG, Amida, and Goscott move to dismiss the petitions pursuant to CPLR 3211[a], , , or . In the alternative, respondents seek relief pursuant to CPLR 3212, or a transfer of the proceedings to the Supreme Court for consolidation with another action.
Movants initially seek dismissal on subject matter jurisdiction grounds, arguing same is lacking as the Surrogate's Court's limited jurisdiction relates only to “matters affecting estates of decedents and not to independent matters involving controversies between living persons.” Movants further opine that it would be a “miscarriage of justice” for this court to entertain such complex and discovery-laden proceedings when they “involve litigation between living individuals or ongoing entities.”
A panoply of decisional law is cited by the movants in support of this argument. However, nearly all of the decisions relied upon curiously predate 1962. Significantly, it was on September 1, 1962 that the New York State Constitution was amended to provide that this court's power extends “over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto ․” (NY Const, art VI, § 12 [d]).
This constitutional mandate—codified in the Surrogates’ Court Procedure Act (SCPA 201, 202)—obviates the need for the Surrogate's Court to couch its authority to entertain a particular matter based upon a specific statute. In any event, this court's dominion over these proceedings is clearly spelled out in SCPA 2103 which provides, in pertinent part, that [a] fiduciary may present to the court which has jurisdiction over the estate a petition ․ that any property as defined in 103 or the proceeds or value thereof which should be paid or delivered to him is (a) in the possession or control of a person who withholds it from him, whether possession or control was obtained prior to creation of the estate or subsequent thereto ․ ‘Property’ as used in this section shall include any and all personal or real property in which decedent had any interest ․” (SCPA 2103  (a), ).
Now, “ ‘for the Surrogate's Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate’ ” (Matter of Piccione, 57 N.Y.2d 278, 288, 456 N.Y.S.2d 669, 442 N.E.2d 1180 , citing Matter of Young, 80 Misc.2d 937, 939, 365 N.Y.S.2d 695 [Sur.Ct., New York County 1975]).
Generally, the Surrogate's Court may invoke jurisdiction if the relief sought would directly benefit the estate (see Matter of Denton, 6 A.D.3d 531, 774 N.Y.S.2d 424 [2d Dept. 2004]; see also, Matter of Mooney, 263 A.D.2d 727, 694 N.Y.S.2d 784 [3d Dept. 1999]; H & G Operating Corporation v. Linden, 151 A.D.2d 898, 542 N.Y.S.2d 868 [3d Dept. 1989]). In the present proceedings, the petitioner, as temporary administrator, seeks to vindicate the rights of the estate to recover title to the subject real property, and the estate will directly benefit if the relief sought is granted. Contrary to movants’ assertions, this falls squarely within this court's jurisdictional purview (see e.g., id., Estate of Barrie, 134 Misc.2d 440, 511 N.Y.S.2d 524 [Sur.Ct., Nassau County 1987]; Estate of Marra, 2001 NYLJ Lexis 4939 [Sur Ct, Nassau County 2001]; Matter of Hasan, 2013 NYLJ Lexis 3417 [Sur Ct, Kings County 2015]).
The court's power to adjudicate these proceedings is also fortuitously not impacted by movants’ unfounded concern that the Court lacks the aptitude necessary to comprehend the sophisticated legal issues presented herein, or the sagacity to render a just result. Despite counsel's apprehension, the court has had occasion to adjudicate many complex issues, including but not limited to those that involve disputed title to real and personal property, fraud, and overreach (see for example, Estate of Manuel, 2017 NYLJ LEXIS 2907 [Sur Ct, Queens County 2017]; Matter of Rosenblatt (Solomon), 65 Misc.3d 1232[A], 2019 WL 6711563 [Sur.Ct., Queens County 2019], Matter of Rezzolla, 184 A.D.3d 717, 124 N.Y.S.3d 213 [2d Dept. 2020]; Matter of Hersh, 198 A.D.3d 773, 156 N.Y.S.3d 62 [2d Dept. 2021]; Matter of Hersh, 198 A.D.3d 776, 156 N.Y.S.3d 71 [2d Dept. 2021]).
Similarly, complaints of “ambush” and “tag team” tactics purportedly levied against counsel during a court conference do not constitute a legal basis for this court to decline jurisdiction. Upon review of the record, the issues complained of are likely attributable to counsel's lack of familiarity with the procedural nuances of the SCPA, difficulties encountered in navigating the e-filing system, and a desire to adjudicate in the forum to which counsel has grown more accustomed. In any event, as the court noted during oral argument, any potential “personality” issues with staff have been eliminated. Accordingly, the branches of the motions seeking to dismiss the proceedings for lack of subject matter jurisdiction are denied.
Respondents also seek dismissal of the petitions based on CPLR 3211(a)(1), claiming that the deeds reflecting the transfer of the subject premises to the respondents qualify as irrefutable documentary evidence, at minimum, of their entitlement to Boyd and Orian's respective interests in the property, given their allegedly undeniable status as bona fide purchaser's for value.
To succeed on a motion to dismiss on the basis of a defense founded upon documentary evidence, respondents must show that the documentary evidence upon which the motion is predicated “utterly refutes” the petitioners allegations, resolves all factual issues as a matter of law, and definitively disposes of the claim (see Anderson v. Armentano, 139 A.D.3d 769, 33 N.Y.S.3d 294 [2d Dept. 2016]).
There is no dispute that the deeds and accompanying instruments of transfer were signed by Boyd and another individual in an attempt to transfer the properties to respondents. Indeed these transfers form the factual predicate for petitioner's prima facie case in these discovery proceedings (see e.g., Matter of Hirsh, 203 A.D.3d 923, 161 N.Y.S.3d 796 [2d Dept. 2022]). Consequently, the documentary evidence submitted does not refute petitioner's claims, but, instead, actually substantiates them. Irrespective of the documentary evidence, the controversy centers on the legal effect, if any, of the transfers (see, e.g., Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 ; LaSalle Bank Nat. Assoc. v. Ally, 39 A.D.3d 597, 835 N.Y.S.2d 264 ; First Natl. Bank of Nev. v. Williams, 74 A.D.3d 740, 904 N.Y.S.2d 707 ).
Accordingly, the branches of the motions to dismiss on the basis of documentary evidence are denied.
Movants also seek dismissal on the grounds that another action is pending in the supreme court (CPLR 3211[a]); or, alternatively, for a transfer of these proceeding to the supreme court for consolidation with those actions.
For dismissal to be considered on this basis, movants must demonstrate that the other pending action was commenced first (see Reckson Assocs. Realty Corp. v. Blasland, Bouck & Lee, Inc., 230 A.D.2d 723, 645 N.Y.S.2d 873 [2d Dept. 1996]).
Here, the instant surrogate's court proceedings were commenced on November 18, 2021. Based on the exhibits annexed to respondents’ moving papers, the earliest the supreme court actions could have been commenced was February 3, 2022. As the issue of title to the real property was first raised here, there is no basis for the relief to be granted and that issue will be determined in this court. Consequently, the branches of the motions to dismiss on the basis that other actions are pending is denied.
Alternatively, movants cite CPLR 3211(a) (2), (4) or (5) as the basis to transfer these proceedings to the supreme court for consolidation. The moving papers do not specifically explain how these statutes would authorize such a transfer 1 . The court thus assumes that counsel was referring to the proviso in CPLR 3211(a)(4) whereby in lieu of dismissal, the court is empowered to “make such order as justice requires.”
That being said, the fact that counsel is pursuing numerous causes of action personal to Boyd neither divests this court of jurisdiction over the issues of title raised herein nor does it provide a compelling basis to transfer these matters to the supreme court.
To start with, it does not appear that any particular advantage would be gained in terms of expediency. Indeed, other than filing the summonses and complaints, little to nothing else has occurred with respect to the supreme court actions (see also Pebble Realty, Inc. v. Estate of Bryant, 2014 NYLJ Lexis 4336 [Sur Ct, Queens County 2014]).In contrast, the threshold issue of the validity of the transfers can be determined expeditiously in this court and, significantly a detrimental outcome is a necessary predicate to movants’ personal claims for relief against Boyd. Movants are of course free to litigate such personal claims against Boyd in their chosen forum. Accordingly, the branches of the motions seeking transfer are denied.
The movants’ alternative request for entertainment of the motion pursuant to CPLR 3212 is denied at this time (CPLR 3211[c]). However, taking into consideration all of the arguments regarding the interests of expediency and judicial economy, the movants are directed to file their answers in proper form with the required filing fee within 10 days of the service upon them of this decision and order. As factual disputes are minimal, upon the filing of proof of service the Court will schedule an immediate pre-trial conference and arrange a schedule for dispositive motions or trial.
Order signed simultaneously herewith.
1. With respect to transfers to the supreme court, counsel would be best advised to consult CPLR 325.
Peter J. Kelly, S.
Response sent, thank you
Docket No: File No. 2017-2245/B, C
Decided: June 14, 2022
Court: Surrogate's Court, New York,
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