Matter of Ungar v Feller
Annotate this CaseDecided on July 21, 2009
Supreme Court, Kings County
In the Matter of the Application of Chana Ungar, for the appointment of a Guardian ad Litem on behalf of MARTIN UNGAR, an adult allegedly incapable of adequately prosecuting or defending his rights, for leave
against
to bring an action on his behalf against Jacob Feller, JULIAN FRANKEL, UZIEL FRANKEL, FAIRMONT FUNDING LTD., and JOHN DOES 1 - 10, the latters being individuals or entities claiming any right or interest in or to the property of The Mazel Guaranty Trust,
26300/06
Respondent Pro Se
UZIEL FRANKEL
485 East 3 Street
Bklyn NY
Respondent- JULIAN FRANKEL
Stuart I Davis, Esq.
Bklyn NY
GAL- MARTIN UNGAR
Solomon E Ungar, Esq.
Bklyn NY
Respondent- JACOB FELLER
Avam Vann, Esq
NY NY
Arthur M. Schack, J.
Movants UZIEL FRANKEL (UZIEL) and JULIAN FRANKEL (JULIAN) separately move for: (1) summary judgment, pursuant to CPLR Rule 3212, to dismiss[*2]
the instant guardianship proceeding by which CYNTHIA RAZILL
BECHER (BECHER) was appointed guardian ad litem on behalf
of MARTIN UNGAR (UNGAR), or vacating the March 12, 2007
order of the Hon. Bernadette F. Bayne which appointed BECHER
as UNGAR's guardian ad litem, because (a) UZIEL and JULIAN
were necessary parties who should have been served with the CPLR Rule 1202 petition to appoint a guardian ad litem for UNGAR, and
(b) UNGAR is not incompetent because he has a commercial driver's
license and drives a school bus; and (2) dismissing or staying an ancillary plenary action, RAZILL
CYNTHIA BECHER, as Guardian ad Litem on behalf of MARTIN
UNGAR; and, CHANA UNGAR, individually, and as mother and
natural guardian of YITTA UNGAR, TZVI UNGAR, SHIFRA
UNGAR, MOSHE UNGAR and DAVID UNGAR, infants . . . and
derivatively, as beneficiaries under THE MAZEL GUARANTY
TRUST v JACOB FELLER, JULIAN FELLER, JULIAN FRANKEL,
UZIEL FRANKEL, FAIRMONT FUNDING, LTD. . . . Defendants,
and, MEIR WEISZ, NECHAMA WEISZ, and THE MAZEL GUARANTY
TRUST, Relief Defendant, Index No.19207/07 (the real estate action),
in which BECHER, as guardian ad litem for UNGAR, is suing UZIEL,
JULIAN and others for (a) acting in concert to violate a Trust Declaration,
(b) conveying UNGAR's home to JULIAN, who allegedly mortgaged
the premises and kept the loan proceeds, and (c) subsequently evicting
UNGAR and his family from the premises, or consolidating the instant
guardianship action with the real estate action.
BECHER, UNGAR's guardian ad litem, opposes the instant motions. She claims that both
UZIEL and JULIAN lack standing to have been notified of the CPLR Rule 1202 petition for the
appointment of BECHER in the instant guardianship proceeding. BECHER is correct. The
instant summary judgment motions are denied. Justice Bayne's March 12, 2007 order is not
vacated. Further, the two actions will not be consolidated. The real estate action and the instant
guardianship action fail to involve "a common question of law or fact." CPLR § 602 (a).
Background
My May 29, 2008 decision and order in the ancillary real estate action, published at 19 Misc 3d 1138 (A), was thorough in describing the history of both the instant guardianship proceeding and the related real estate action. JULIAN, in the real estate action, moved for summary judgment and dismissal of the complaint, and BECHER cross-moved to void and cancel various real estate transactions involved with UNGAR's home and grant other relief with respect to violations of the Trust Declaration. Jeno Ungar, UNGAR's father, created the MAZEL GUARANTY TRUST (TRUST) on August 15, 1997. The TRUST owned the house at 1941 51st Street, Brooklyn, New York, in which UNGAR lived with his wife, CHANA UNGAR (CHANA), and his children. Jeno Ungar appointed Rabbi Meir Weisz (WEISZ) as Trustee. I observed in my decision and order, at 3, that:
Essentially, UNGAR, in his rambling affirmation, claims [*3]
that he met UZIEL in his synagogue in 2003, and UZIEL then
fraudulently induced him to get WEISZ to resign as Trustee of
the TRUST. UNGAR alleges that UZIEL claimed to be a lawyer
[he is not] and that UZIEL knew prior to their meeting that UNGAR
was receiving social security, food stamps and disability benefits.
Further, UNGAR alleges that UZIEL had knowledge of the existence
of the TRUST, with WEISZ as Trustee. UNGAR states in ¶ 5
[affirmation in opposition to JULIAN's motion for summary judgment]
that "Uziel convinced me that I could go to jail, my house could
be taken away, and all payments to me would stop if the government
ever found out that I was getting all of this money from them while still
owning a house. I became very frightened, but he told me that he
would help me." UNGAR claims that UZIEL convinced him to go
to WEISZ to ask him to resign as Trustee, so that UZIEL's friend,
FELLER [Jacob Feller], could be appointed as Trustee and protect
UNGAR's interest. UNGAR states in ¶ 7 that "I trusted Uziel . . .
He always told me that I had nothing to worry about because he would
hold the house for me." UNGAR then describes how UZIEL's son,
JULIAN, had him evicted from his house, and how he became
separated from his wife and became homeless. He concludes, in ¶ 22,
that "[m]y whole family is broken and is destroyed because of what
Uziel Frankel did to me. I have nothing left in life anymore. He took
all I had. He took away my house, my family, my children, and
everything else from me."
UZIEL and FELLER, in their affirmations in support of
JULIAN's motion and in opposition to plaintiffs' cross-motion,
both claim that UNGAR is a con artist who feigned mental illness,
and is the architect of a scheme to get WEISZ to resign as Trustee,
so that the proceeds of the sale of the subject premises could be used
as the down payment for the purchase of three houses located at
960-964 East 3rd Street, Brooklyn, New York, controlled by UZIEL.
Both UZIEL, at page 4 of his affirmation, and FELLER, at page 2 of
his affirmation, compare UNGAR to the late Vincent Gigante, the
famous Genovese crime family boss, who pretended for years to be
mentally ill but ultimately was found competent. They both deny
that they intimidated UNGAR and claim that UNGAR came to them
with his real estate plans. Further, they claim that UNGAR persuaded
WEISZ to resign as Trustee and appoint FELLER as successor Trustee . . .
Both FELLER and UZIEL claim that they never met WEISZ.
WEISZ resigned as the TRUST's Trustee on December 31, 2003 and appointed FELLER as successor Trustee, pursuant to the Trust Declaration, despite the Trust Declaration stating that WEISZ's wife, NECHAMA WEISZ (NECHAMA), was to be the successor Trustee, upon 30 days written notice of WEISZ's resignation. No party presented to the Court NECHAMA's [*4]declination to serve as the successor Trustee of the TRUST.
Then, as I described in my May 29, 2008 decision and order, at 4 - 5:
Fifteen days after WEISZ's resignation as Trustee and FELLER's
appointment as successor Trustee, FELLER as Trustee conveyed the
subject premises to JULIAN, by a warranty deed, dated January 15,
2004 . . . The Real Property Transfer Tax form . . . states that the
purchase price is $370,000.00. Further, the signature for the buyer
is "Julian Frankel by Uziel Frankel AIF" and the seller's signature is
"Jacob Feller," not "Jacob Feller as Trustee of the Mazel Guaranty
Trust." . . .
However, the January 14, 2004 Power of Attorney . . . by
JULIAN, appointing UZIEL as his attorney in fact . . . is defective
on its face. The form, pursuant to General Obligations Law (GOL)
§5 -1501, clearly states, in preprinted language, that the principal
will initial in the blank space to the left of various subdivisions of
authority, those types of authority that the grantor chooses to grant
to his or her attorney in fact, lettered "(A)" to "(P)."
Then, the form states that:
If the blank space to the left of any particular lettered subdivision
is NOT initialed, NO AUTHORITY WILL BE GRANTED for
matters that are included in that subdivision. Alternatively, the
letter corresponding to each power you wish to grant may be
written in the blank line in subdivision "(Q)," and you may put
your initials in the blank space to the left of subdivision "(Q),"
in order to grant each of the powers so indicated.
No specific subdivisions of authority are initialed by principal JULIAN
in subdivisions "(A)" to "(P)." JULIAN's power of attorney form, in
subdivision "(Q)" lists "each of the matters identified by the following
letters: A, B, D, E, F, H, N." Subdivision (A) is authority to conduct
"real estate transactions." However there is no initial "in the blank
space to the left of subdivision (Q),' in order to grant each of the
powers so indicated."
Therefore, since JULIAN's initials were missing in any of the
spaces to the left of any lettered subdivisions, "NO AUTHORITY
WILL BE GRANTED for matters that are included in that subdivision,"
and the power of attorney to UZIEL is null and void. Further, UZIEL's
"Affidavit as to Power of Attorney Being in Full Force," dated the
next day, January 15, 2004, is also defective. UZIEL left blank the
name of the principal, the principal's address, the date of appointment,
and "the purpose of inducing."
Further, at 5 - 6, I noted that:
It appears that the $370,000.00 purchase price was illusory,
and that the TRUST never received a penny from JULIAN. On [*5]
February 10, 2004, the TRUST, by FELLER as plaintiff, agreed to
arbitrate a real estate dispute with defendants UZIEL and JULIAN,
by his defective power of attorney to UZIEL, in a rabbinical court,
regarding the real estate transactions for 960-964 East 3rd Street and
1941 51st Street . . . The February 16, 2004 decision by Rabbi Mechel
Moskowitz of Bais Din Zedek Hachareidis of New York . . . states
that the January 15, 2004 conveyance of 1941 51st Street to JULIAN
by the TRUST was "in lieu of a cash down-payment of $370,000.00,
on a contract of sale for the purchase of three adjacent houses located
at 960-964 East 3rd Street." Rabbi Moskowitz ordered JULIAN to
pay the TRUST $370,000.00 without any interest for a period of 25
years, pursuant to a payment schedule, and only $50,000.00 was to
be a secured debt. Further, the $320,000.00 balance "shall remain
as an unsecured debt without guarantee of, any mortgage, other
collateral, or formal money judgment against the Defendant Julian
Frankel." The purported contract of sale between the TRUST and
JULIAN for the East 3rd Street houses was never presented to this
Court.
Then, the TRUST, claiming an address in Manhattan, filed a
petition in Supreme Court, New York County to confirm the Beth
Din arbitration award. Justice Marilyn Shafer (Mazel Guaranty Trust
v Julian Frankel and Uziel Frankel, Index Number 105002/04) issued
a judgment on September 2, 2004 confirming Rabbi Moskowitz's
February 16, 2004-arbitration award. Neither UNGAR nor any of
the other plaintiffs in the instant action were parties in the Beth Din
proceeding or the Supreme Court proceeding in New York County to
confirm the arbitration award.
JULIAN, one week prior to his agreement to submit his real
estate dispute with the TRUST to the Beth Din, mortgaged the subject
premises with defendant FAIRMONT, on February 3, 2004, to secure
a loan of $329,000.00, which was recorded on March 31, 2004 . . . In
the mortgage instrument JULIAN committed fraud. Prior to executing
the mortgage instrument, in the January 15, 2004 Deed, JULIAN gave his address as 909 East 29th Street. Subsequent to the mortgage
execution, the October 11, 2004 Notice of Entry of Justice Shaffer's
judgment . . . lists JULIAN's address as 909 East 29th Street. However,
in the February 3, 2004 mortgage instrument JULIAN's address is
given as the address of the subject premises, 1941 51st Street.
Further, in the Covenants of the Mortgage, it states, on page 4 of
the mortgage, that "I promise and I agree with Lender as follows," in
§ 6, on page 8 of the mortgage instrument, "Borrower's Obligations
to Occupy the Property," that "I will occupy the Property and use the
Property as my principal residence within 60 days after I sign this [*6]
Security Instrument. I will continue to occupy the Property and to
use the Property as my principal residence for at least one year."
Then, above JULIAN's signature, at the end of the mortgage agreement,
it states that "BY SIGNING BELOW, I accept and agree to the promises
and agreements contained in pages 1 through 17 of this Security
Instrument and any Rider signed by me and recorded with it." JULIAN
never lived at 1941 51st Street, Brooklyn, New York, and never
occupied the premises as his personal residence.
JULIAN continued to perpetrate his residence fraud with
FAIRMONT in a consolidation, modification and extension agreement
executed on April 1, 2004 . . . JULIAN states, at page 1 of the Agreement,
that "I promise and agree with Lender as follows," including in § VI,
on page 2, "Borrower's Interest in the Property," that "I promise that
I am the lawful owner occupying the Property."
Subsequently, JULIAN succeeded in a landlord-tenant holdover
proceeding to evict UNGAR and his family from 1941 51st Street.
UNGAR's wife, Chana Ungar (CHANA), applied for the appointment of a guardian ad litem in the instant guardianship action, so that a guardian ad litem could represent UNGAR in a real estate action against FELLER, JULIAN, UZIEL and others. The petition, pursuant to CPLR Rule 1202, was presented by CHANA to have BECHER appointed as UNGAR's guardian ad litem. The petition recited UNGAR's psychiatric issues, stating in ¶ 3, that UNGAR "is incapable of adequately prosecuting or defending his rights." After summarizing, in ¶ 4, that "UNGAR was defrauded of his property," the petition, in ¶ 5, states that "[i]t is the intention of the proposed guardian to take all steps legally available to her in an attempt to set aside and vacate the transfer of this property [1941 51st Street] out of the trust, as well as any and all actions that were taken to deprive my husband of the benefits thereof."
Justice Bayne, in her March 12, 2007 decision and order in this action, appointed BECHER
as UNGAR's guardian ad litem after reading CHANA's petittion, the affirmation of petitioner's
attorney, "the certification of BRIAN TRAPPLER, M.D. . . .
the affidavit and consent of . . . BECHER . . . and the consent of . . . UNGAR."
Further, Justice Bayne conducted a hearing on February 13, 2007, in which CHANA, UNGAR,
and BECHER all testified and "[t]he Court having examined each of the witnesses, separately
and individually, and being satisfied as to the allegations of the petition" ordered that BECHER
be appointed UNGAR's guardian ad litem "for the specific purpose of commencing and bringing
an action against JACOB FELLER, JULIAN FRANKEL, UZIEL FRANKEL, FAIRMONT
FUNDING LTD., and JOHN DOES 1 - 10, the latters being individuals or entities claiming any
right or interest in or to the property of The Mazel Guaranty Trust, all proposed defendants
herein, in order to protect the rights, property, and interests of MARTIN UNGAR."
The summons and complaint in the real estate action were filed with the Kings County Clerk on May 29, 2007. Exactly one year later, in my May 29, 2008 decision and order, I held, at 1 - 2, that:
After extensive oral argument and a review of the papers
submitted on the motion and cross-motion, the Court finds that [*7]
triable issues of fact exist. Further, the appointment of FELLER
as successor Trustee of the TRUST violated the Trust Declaration . . .
which created the TRUST. Therefore, all the recorded real estate
transactions that flowed from the invalid FELLER appointment -
the conveyance of the premises to defendant JULIAN by successor
Trustee FELLER, the mortgaging of the premises by defendant
JULIAN with defendant Fairmont Funding, Ltd. (FAIRMONT),
and the eviction of the UNGAR family - are voided and cancelled.
The Court denies summary judgment to defendant JULIAN and
grants plaintiffs the relief requested in their cross-motion. Additionally,
the power of attorney given to defendant . . . UZIEL by defendant
JULIAN, for the closing with defendant FELLER as successor Trustee
of the TRUST, is defective and void. UZIEL and JULIAN filed and served in February and March 2009 the instant
motions to dismiss the instant guardianship action or vacate Justice Bayne's appointment
of BECHER as UNGAR's guardian ad litem and to dismiss or stay the ancillary real
estate action. Both Justices Yvonne Lewis and Bernadette Bayne adjudicated the
instant guardianship action. The instant motions were scheduled for oral argument before Justice
Bayne. Then, both Justices Lewis and Bayne issued decisions and orders transferring the instant
action and motions to myself. Justice Lewis, in her March 19, 2009 decision and order in this
matter held that:
It has come to the attention of this Court that the within matter,
which is pending before this Court, has a companion matter under
index No. 19207/07, which has been assigned to Justice Schack . . .
and it appears that the parties thereto have appeared before Justice
Schack numerous times and that he is familiar with the cases, this
matter is respectfully referred to Justice Schack in its entirety.
The next day, March 20, 2009, Justice Bayne issued a decision and order, holding
that "[p]ursuant to the Order of Justice Lewis, which transferred the within matter, in its entirety
to Justice Schack, in the interests of judicial economy, the hearing that was scheduled before this
Court is respectfully referred to, and will be heard by Justice Schack." Subsequently, on May 8,
2009, I heard oral argument on the instant motions and reserved decision.
Discussion
CPLR §1201 states in relevant
part that "[a] person shall appear by his guardian ad litem if he is . . . an adult incapable of
adequately prosecuting or defending his rights." CPLR Rule 1202 (a) (2) states that the motion to
appoint a guardian ad litem may be made by "a relative" and in CPLR Rule 1202 (b), if the
person for whom a guardian ad litem is proposed has no "guardian, committee or conservator,
upon the person with whom he resides. Notice shall also be served upon the person who would
be represented if he is more than fourteen years or age and had not been declared to be
incompetent."
Justice Bayne, in her March 12, 2007 decision and order, appointed BECHER as UNGAR's guardian ad litem, after finding that it appeared to the Court "that UNGAR is an adult who is incapable of adequately prosecuting or defending his rights and consenting to the [*8]appointment of his sister RAZILL CYNTHIA BECHER, as Guardian ad Litem on his behalf." As noted above, Justice Bayne reviewed the petition and its supporting papers, and heard the testimony of CHANA, UNGAR and BECHER. Justice Bayne's March 12, 2007 decision and order is patently logical and judicially sound on its merits.
The movants' requests for relief are predicated on the false premise that they are indispensable parties to the guardianship proceedings who were deprived of their right to participate and were prejudiced as a result. However, movants UZIEL and JULIAN lack standing to participate in the instant guardianship matter. BECHER's appointment as UNGAR's guardian ad litem, pursuant to CPLR Rule 1202, was proper. UZIEL and JULIAN are not necessary parties who should have been served with a notice of motion in this guardianship action. They are not, pursuant to CPLR Rule 1202 (b), the guardian, committee, conservator, or persons with whom UNGAR resides. The instant guardianship proceeding is purely a matter within UNGAR's family to protect his interests as an "adult incapable of adequately prosecuting or defending his rights." CPLR § 1201. The movants claim that they were denied due process by having been excluded from the appointment of BECHER as UNGAR's guardian ad litem not only lacks merit, but both UZIEL and JULIAN fail to cite any authority in support of their contention that they are necessary parties to the appointment of UNGAR's guardian ad litem.
The courts have a duty to protect incompetents such as UNGAR. "Incompetent persons become the wards of the court, upon which a duty devolves of protection both as to their persons and property. This duty is not limited to cases only in which a committee has been appointed, but it extends to all cases where the fact of incompetency exists." (Wurster v Armfield, 175 NY 256 [1902]). This "does not mean that the courts shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty on the courts to protect such litigants." (Sengstack v Sengstack, 4 NY2d 502, 509 [1958]). Therefore, Justice Bayne appointed BECHER as UNGAR's guardian ad litem, to allow BECHER to pursue on UNGAR's behalf the ancillary real estate action now before me.
Moreover, movants UZIEL and JULIAN lack standing to challenge the instant guardianship proceeding. The party who has standing "may cross the threshold and seek judicial redress." (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]). Professor David Siegel, in NY Prac, § 136, at 232 [4th ed] instructs that:
[i]t is the law's policy to allow only an aggrieved person to bring a
lawsuit . . . A want of "standing to sue," in other words, is just another
way of saying that this particular plaintiff is not involved in a genuine
controversy, and a simple syllogism takes us from there to a "jurisdictional"
dismissal: (1) the courts have jurisdiction only over controversies; (2) a
plaintiff found to lack "standing" is not involved in a controversy; and
(3) the courts therefore have no jurisdiction of the case when such a
plaintiff purports to bring it.
"Standing to sue requires an interest in the claim at issue in the lawsuit that the law
will recognize as a sufficient predicate for determining the issue at the litigant's request." (Caprer v Nussbaum, 36 AD3d
176, 181 [2d Dept 2006]). UZIEL and JULIAN's lack of standing to challenge the
guardianship proceeding dooms this blatant attempt to collaterally attack my [*9]decisions and orders in the real estate action.
The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case. (Alvarez v Prospect Hospital, 68
NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980];
Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make
such a showing requires denial of the motion, regardless of the sufficiency of the opposing
papers. (Greenberg v Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974]; Winegrad v
New York University Medical Center, 64 NY2d 851 [1985]).
CPLR 3212 (b) requires that for a court to grant summary judgment the court must
determine if the movant's papers justify holding as a matter of law "that there is no
defense to the cause of action or that the cause of action or defense has no merit." The evidence
submitted in support of the movant must be viewed in the light most favorable to the
non-movant. (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission
Co., 168 AD2d 610 [2d Dept 1990]). Once the movant has established his or her prima
facie case, the party opposing a motion for summary judgment bears the burden of
"produc[ing] evidentiary proof in admissible form sufficient to require a trial of material
questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or
assertions are insufficient" (Zuckerman v City of New York, supra at 562;
see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [2d
Dept 1991]; Tessier v New York City Health & Hospitals Corp., 177 AD2d 626 [2d
Dept 1991]). Summary judgment shall be granted only when there are no issues of material fact
and the evidence requires the court to direct judgment in favor of the movant as a matter of law.
(Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]).
Movants UZIEL and JULIAN lack of standing precludes them from moving for summary judgment. Even if they had standing, they fail to offer any psychiatric or psychological evidence to contradict Dr. Trappler. Their only "evidence" of UNGAR's competency, according to ¶ 5 UZIEL's affidavit in support of the motion, are allegations that UNGAR has a New York State commercial driver's license and drives a school bus "together with . . . corresponding transcripts, and numerous recorded follow-up telephone conversations, all of which independently show and prove Martin Ungar to be extremely shrewd, conniving, and mentally competent." Viewing this "evidence" in the light most favorable to movants, it is insufficient to contradict Dr. Trappler's findings. Thus, the summary judgment motions must be dismissed.
Further, this Court will not stay the companion real estate action or consolidate it with the
instant guardianship proceeding. "When actions involving a common question of law or fact are
pending before a court, the court, upon motion, may order . . . the actions consolidated." CPLR
§ 602 (a). "A motion to consolidate actions or for a joint trial pursuant to CPLR 602 (a)
rests in the sound discretion of the trial court. Absent a showing of prejudice to a substantial
right by a party opposing the motion, consolidation should be granted where common questions
of law or fact exist." (Mattia v Food Emporium, Inc., 259 AD2d 527 [2d Dept 1999]).
(See RCN Const. Corp. v Fleet Bank,
N.A., 34 AD3d 776, 777 [2d Dept 2006]). The instant guardianship proceeding does not
have common questions of law or fact with the real estate action. "Although there are some
common issues, the actions arise out of different transactions and involve completely different
claims." (Village of Mamaroneck v
Mamaroneck Affordable Condominium [*10]Corporation, 13
AD3d 361[2d Dept 2004]). Consolidating the guardianship proceeding, involved with
UNGAR's mental competency, with the real estate action, involved with trusts, fraud and
fiduciary responsibility, would be the judicial equivalent of mixing apples with oranges.
Consolidating "is improper, where as here, there are no common questions or law or fact."
(Earbert Restaurant, Inc. v Little Luxuries, Inc., 99 AD2d 734 [1d Dept 1984]).
Conclusion
Accordingly, it is
ORDERED, that the motions of movants UZIEL FRANKEL and JULIAN FRANKEL for:
(1) summary judgment and dismissal of the instant guardianship
action or vacating Justice Bayne's March 12, 2007 order appointing RAZILL
CYNTHIA BECHER as guardian ad litem for and on behalf of MARTIN UNGAR; and, (2)
dismissing or staying an ancillary plenary action, RAZILL CYNTHIA BECHER, as
Guardian ad Litem on behalf of MARTIN UNGAR; and, CHANA UNGAR, individually, and as
mother and natural guardian of YITTA UNGAR, TZVI UNGAR, SHIFRA UNGAR, MOSHE
UNGAR and DAVID UNGAR, infants . . . and derivatively, as beneficiaries under THE
MAZEL GUARANTY TRUST v JACOB FELLER, JULIAN FELLER
JULIAN FRANKEL, UZIEL FRANKEL, FAIRMONT FUNDING, LTD. .
. . Defendants, and, MEIR WEISZ, NECHAMA WEISZ, and THE MAZEL
GUARANTY TRUST, Relief Defendant,
Index No. 19207/07, or consolidating the instant action with Index No. 19207/07,
are
denied in their entirely.
This constitutes the decision and order of the Court.
ENTER
__________________________
HON. ARTHUR M. SCHACK
J. S. C.
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