IN RE: the Estate of Douglas Rosenberg A/K/A DOUGLAS K. ROSENBERG (2026)

The following papers numbered 1 to 6 were fully submitted,

Paper Numbered

Notice of Motion to Dismiss this Proceeding (dated December 31, 2025) 1

Affirmation of Roger A. Levy, Esq. in Support of Motion to Dismiss this Proceeding (dated December 31, 2025) 2

Notice of Cross-Motion to Determine Validity of Claim, Post Bond and Prohibit Distribution of Estate Assets (dated January 28, 2026) 3

Affirmation of O. Benjamin Okeke, Esq. in Opposition of Motion and in Support of Cross Motion (dated January 28, 2026) 4

Affirmation of Roger A. Levy, Esq. in Further Support of Motion to Dismiss and in Opposition to Cross Motion (dated February 24, 2026) 5

Affirmation of Roger A. Levy, Esq. Supporting Motion (dated March 19, 2026) 6

Sur Reply in Opposition to the Motion and in Further Support of the Cross Motion by O. Benjamin Okeke, Esq 7

Upon the foregoing papers, the motion by respondent Wendy Rost, as Executor of the Estate Douglas Rosenberg a/k/a Douglas K. Rosenberg pursuant to CPLR 3211(a)(4) to dismiss the petition to determine the validity of a claim is granted without prejudice pending a final determination in the Supreme Court Action, and the cross-motion by petitioner Ahmed N. Mohamed, individually and derivatively on behalf of BJ Organization of New York Inc. is denied.

In this proceeding to determine the validity of a claim pursuant to SCPA 1809, Petitioner Ahmed N. Mohamed, individually and derivatively on behalf of BJ Organization of New York Inc. (hereinafter "Petitioner") seeks the allowance of its claim against the estate arising from the decedent's duties as a court appointed receiver for BJ Organization of New York Inc. with regard to certain real properties. Petitioner also seeks distribution from the Estate in the amount of its claim. Respondent Wendy Rost, as Executor of the Estate Douglas Rosenberg a/k/a Douglas K. Rosenberg (hereinafter, "Respondent") moves to dismiss the petition pursuant to CPLR 3211(a)(4) alleging the petition is a duplicate of the claims pending in litigation between the parties in New York Supreme Court, Kings County, entitled Ahmed N. Mohamed a/k/a Ahmed, Mohamed Ali, Individually and Derivatively on behalf of BJ Organization of New York, Inc. by Mareget Streicker Porres, its Temporary Receiver, Plaintiffs, v. Wendy Jane Rost, as Executor of the Estate of Douglas Rosenberg, Individually and in his official capacity as Temporary Receiver of BJ Organization of New York, Inc., and Abdo Mohamed Ali a/k/a Kenny Eli, Defendants, Index No. 510663/2019 (hereinafter, the "Supreme Court Action").

Petitioner cross moves seeking a determination that the claim is valid or, in the alternative, requiring the Respondent to post a bond in the amount of $3.5 million dollars to secure the eventual outcome of the claim, and restraining the Executor from distributing any Estate assets until the pending litigation in Supreme Court is concluded.

During oral argument of the aforementioned motions, counsel advised the Court that a Decision/Order was issued in the Supreme Court action and they were awaiting a copy. Both parties were directed to submit said Decision/Order to this Court upon it becoming available as well as affirmations updating their motion papers based on the Decision/Order. Counsel did so and the Order/Decision dated February 27, 2026 was submitted, together with affirmations.

Upon review of the documents submitted and a review of the Supreme Court Action e-filings and calendar, it is clear that the litigation between the parties said forum is still pending and there has yet to be a final determination on liability of the decedent and the amount of damages, if any. The Supreme Court's Decision/Order dated February 27, 2026 substituted Respondent for the decedent as a party, granted Petitioner leave to sue the decedent in his capacity as receiver nunc pro tunc, granted a default judgment against the Respondent, and referred the matter to a referee for an inquest on damages, among other things.

There is no question that Petitioner's claim before this Court arises from the lawsuit pending in the Supreme Court Action. In fact, Petitioner's verified claim annexed to the subject petition states exactly that and attaches a copy of the summons and complaint filed in that action in support of its claim. As of the date of this decision, not only has the inquest directed in the Court's Decision/Order dated January 27, 2026 not occurred, but an Order to Show Cause to re-argue the motions resulting in the Court's Decision/Order is still pending decision. Accordingly, it is clear that the litigation amongst the parties regarding the claim for which Petitioner seeks to determine the validity pursuant to SCPA 1809 is pending in the Supreme Court Action. As such, dismissal of Petitioner's petition to determine the validity of its claim pursuant to 1809 is warranted (see In re Qyra, 185 AD3d 935, 937 [2d Dept 2020]; 6 Warren's Heaton on Surrogate's Court Practice § 71.06 [2026] [stating that only debts or unpaid expenses are properly the subject of adjudication pursuant to SCPA 1809]).

Moreover, absent a final determination in Supreme Court Action, Petitioner's claim against the Estate constitutes a contingent or unliquidated claim within the meaning of SCPA 1804, being currently unascertained or underdetermined as to liability or amount (see SCPA 1804; In re Biel, 103 AD2d 287, 292 [2d Dept. 1984]; Estate of Nancy Luk, 2013 NYLJ LEXIS 2228 [Surr. Ct., Nassau Cty. 2013]). While there is no authority for the filing of a surety bond by an executor to secure a contingent or unliquidated claim, should Petitioner seek estates assets to be held to secure its contingent claim, a proceeding pursuant to SCPA 1804 would be necessary (see SCPA 1804; Estate of Evans, 1998 NYLJ LEXIS 1575 [Surr. Ct. Nassau Cty. 1998]; In re Claim of Jambet Realty, Inc., 2011 NYLJ LEXIS 1753 [Surr. Ct., Suffolk Cty. 2011]; Estate of Louis Alexis Gentile, 1995 NYLJ LEXIS 3651 [Surr. Ct., Westchester Cty. 1995]).) Petitioner requests a reservation of estate assets pursuant to SCPA 1804 for the first time in its Sur Reply. As such, a reservation of estate assets and/or restraint of distribution of estate assets is not properly before this Court.

The court has considered any remaining contentions of the parties and finds them without merit.

Accordingly, Respondent's motion to dismiss the petition to determine the validity of a claim filed by Petitioner is granted without prejudice pending a final determination in the Supreme Court Action, and the cross-motion by Petitioner is denied.

This decision shall constitute the order of the court.

Dated: July 16, 2026

MATTHEW J. TITONE, Surrogate

Matthew J. Titone, S.