Matter of Kozon v Kozon

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Matter of Kozon v Kozon 2011 NY Slip Op 32258(U) August 12, 2011 Sup Ct, Nassau County Docket Number: 4838/11 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRIL/IAS PART 32 In the Matter of the Application of NASSAU COUNTY LORRINE KOZON Petitioner - against - JOAN KOZON , individually and as Trustee of the Gladys Kozon Revocable Living Trust" under Agreement dated June 26 , 1998 Index No. : 4838/11 Motion Seq. Nos. : 02 , 03 Motion Dates: 05/04/11 05/04/11 Respondent. The followine: papers have been read on these motions: Papers Numbered Amended Order to Show Cause (Seq. No. 02). Affirmation. Verified Petition and Exhibits Order to Show Cause and Temporar Stay of Proceedings (Seq. No. 03). Affdavit and Exhibits and Memorandum of Law Affrmation in Opposition to Order to Show Cause (Seq. No. 03) and Exhibits and Memorandum of Law Reply Memorandum of Law in Sut'Port of Order to Show Cause (Seq. No. 02) Reply Affdavit in Support of Order to Show Cause (Seq. No. 03) and Exhibit Upon the foregoing papers , it is ordered that the motions are decided as follows: Petitioner moves (Seq. No. 02) for an order directing a judicial accounting by respondent with respect to " Gladys Kozon Revocable Living Trust" under Agreement , dated June 26 , 1998 , the judicial settlement of said account and final payment and distribution thereunder as the Cour shall direct , as well as an award of daages , costs and attorney s fees. [* 2] Respondent moves (Seq. No. 03), pursuant to CPLR 602(a) and (b), for an order r.emoving matter curently pending in the Surogate s Cour, Nassau County to this Cour and consolidating it herewith , for unfied discovery and trial. Petitioner opposes this motion. With respect to respondent's instat motion (Seq. No. 03), upon the papers submitted respondent , Joan Kozon , has demonstrated her entitlement to an order 602(b) consolidating in this Cour: (l)the subject , revocable trst pursuat to CPLR proceeding instituted by the petitioner; with (2) a related irrevocable " trust proceeding also commenced by petitioner respondent's sister - in the Surogate s Cour , Nassau County. Signficantly, the record establishes that subject proceedings involve common questions of law and fact relating to respondent's disposition of certain assets and/or her conduct as trustee of the two , related trsts - both of which were created at the same time by the paries ' mother Gladys Kozon (now deceased), as par of a " common estate " plan. Aff. 26; Supreme Cour Pet. 7; Irrevocable Trust Pet. See L. Kozon (June 2010) 5. It bears noting in this respect that, in prior Surogate s Cour litigation , petitioner and her counsel argued that in crafing the provisions of the trsts , the involved paries " obliterated" all distinction between the two instruents - to the extent that both effectively comprised a " single entity" for administration and asset disposition puroses. See Farinacci Affrmation 26- 27. It is settled that a motion for consolidation is addressed to the sound discretion of the trial cour, and absent a showing of substantial prejudice by the par opposing the motion consolidation is proper where there are common questions of law and fact. See Via/ax Corp. v. Citicorp Leasing, Inc. 54 A.D. 3d 846 , 864 N. Y. Price Jewelers. Com, Inc. v. Internet Data Storage CPLR 2d 479 (2d Dept. 2008); Systems, Inc. 51 A. D.3d 839 , 857 602(b); Best [* 3] Y.S. 2d 731 (2d Dept. 2008); (2d Dept. 2007); Nigro Kally v. v. Mount Sinai Hosp. 44 AD. 3d 1010 , 844 N. Pickett 39 A. Moreover, Cours favor consolidation 2d 415 3d 720 833 N. Y.S.2d 655 (2d Dept. 2007). (see Fransen v. Maniscalco 256 AD. 2d N. Y. S.2d 310 (2d Dept. 1998)), paricularly where , as here , 305 , 681 it wil avoid unnecessar duplication of trials , save costs and expenses , and prevent an injustice which might result from conficting decisions predicated upon on the Internet Data Storage Systems, Inc. , supra; Nigro County of Suffolk 67 AD.3d 973 888 N. See Best Price Jewelers. Com, Inc. same facts. v. Pickett, supra. See also Mackey S.2d 774 (2d Dept. 2009); DeSilva 45 AD. 3d 312 847 N. Y.S. 2d 1 (pt Dept. 2007); AD. 3d 795 859 N. 2d 379 (2d Dept. 2008); 156 AD.2d 677 , 549 N. Plot Realty LLC Padula Zupich v. v. City of New York, 52 Flushing Hosp. and Medical Center 2d 441 (2d Dept. 1989). In opposition to respondent's showing, petitioner has failed to sustain her responsive burden of establishing material prejudice. Y.S.2d 86 (1st Dept. 2011); E.g. DeSilva Walls v. Amcan Holdings, Inc. Y.S.2d 162 (1 st Dept. 2006). See generally Plot Realty LLC 269 A. Plot Realty, LLC 85 AD.3d 422 , 924 Prestige Management, Inc. 59 AD.3d 311 872 Y.S. 2d 918 (1 st Dept. 2009); 36- 08 33rd Street Corp. v. v. Torys LLP 32 A. v. 3d 337 821 DeSilva , supra; Drapaniotis 2d 352 , 702 N. Y.S. 2d 861 (2d Dept. 2000). The Cour notes that proceedings in the pending Surogate s matter are apparently at an early stage and moreover, have been stayed pursuant to this Cour' s temporar restraining order 201 L See dated April Order to Show Cause , dated April 29 , 2011 (1 st decretal paragraph at 2- 3). In any event , upon the exercise of its broad discretion relating to the supervision of disclosure (Ravnikar v. Skyline Credit-Ride, Inc. 79 A. D.3d 1118 913 N. Y.S. 2d 339 (2d Dept. 2010), the [* 4] Cour is empowered to minimize any demonstrable prejudice flowing from discovery-related See generally Alsol Enterprises, Ltd issues. 783 N. 2d 620 (2d Dept. 2004); 213 AD.2d 270 624 N. v. v. Fransen Premier Lincoln-Mercury, Maniscalco , supra; Collazo 2d 130 (pt Dept. 1995); Zupich v. Inc. 11 A. DJd 494 v. City of New York Flushing Hosp. and Medical Center, supra. Significantly, petitioner originally commenced a compulsory accounting matter in Surogate s Cour relating to the revocable trst at issue here - a proceeding which she instituted at about the same time she commenced the curently pending, Surogate s Cour " irrevocable trust matter. However, the revocable trst subject matter proceeding was later dismissed by the Surogate on jursdiction grounds , thereby leaving the Supreme Cour as the only readily available venue in which a consolidated proceeding can now be prosecuted. See Petitioner Affrmation in Support of Amended Order to Show Cause Exhibit C , Order of Nassau County Surogate Riordan , dated August 24 , 2010. 1037 492 N. S.2d 829 (2d Dept. 1985). Inc. 41 AD. 3d 645 838 N. 608 N. v. County of Westchester 112 AD.2d See also GAM Property Corp. S.2d 633 (2d Dept. 2007); 2d 297 (2d Dept. 1994); 629 588 N. Y.S. 2d Cf Woods Gomez v. McCall v. v. Sorrento Lactalis Berman 201 AD. 2d 709 Jersey Coast Egg Producers, Inc. 186 AD.2d 589 (2d Dept. 1992) Lastly, petitioner s reliance upon inapposite , pre- CPLR consolidation and/or removal holdings is unpersuasive Cour (e. g., Budd , Nassau County 1960), since CPLR v. Schriver 22 Misc.2d 206 203 N. Y.S. 2d 291 (Supreme 602(b) permits the Supreme Cour- without qualifications relevant here - to consolidate before it, matters pending in " different" cours. Dunn v. Braick Misc.3d , 2006 WL 3821535 (Supreme Cour Oneida County, 2006). Furher, it is well settled that the Supreme Cour and the Surogate s Cour possess concurent [* 5] jurisdiction over inter alia AD.3d 699 , 913 N. Y. the administration of a decedent' s 2d 692 (2d Dept. 2010); 528 859 N. Y.S. 2d 412 (1st Dept. 2008); Matter of Kaminester v. Foldes, Gaentner 246 (2d Dept. 2005). See also Matter of Chi antell 525 (2d Dept. 2011); Manning Y. Const. , Ar. VI , v. See Goodwin v. Rice, 79 estate. v. v. Thorne 73 AD. 3d 51 A. DJd Benkovich 18 A. D.3d 424 , 795 N. Y.S.2d Vishnick 84 AD.3d 797 922 N. 1136 S.2d 900 N. Y.s. 2d 900 (2d Dept. 2010); ~ 7. The Cour has considered petitioner s remaining contentions and concludes that they are insufficient to defeat the motion to consolidate. Lastly, and with respect to petitioner s April 7 2011 Amended Order to Show Cause (Seq. No. 02), the principal relief sought and granted in connection with that prior application was a directive authorizing out-of-state , personal service upon respondent , Joan Kozon , in Rio Rancho , New Mexico , pursuant to CPLR~ 308(5). See Afrmation in Support ~~ 6- Although said Order to Show Cause also contas petitioner s judicial accounting claim - a demand and also requests a " final" for the ultimate relief on the distribution , as well as four milion dollars in damages - petitioner s counsel' s supporting affrmation contains no substantive discussion of the issues in the case. Nor , in any event , could such relief be summarly granted at this juncture of the proceeding. Accordingly, it is ORDERED that petitioner s motion (Seq. No. 02) for a judgment and a final distrbution on her judicial accounting claim is hereby ORDERED DENIED. And it is fuher that respondent's motion (Seq. No. 03) for an order removing a stated matter pending in the Surogate s Court , Nassau County, to this Cour and consolidating it herewith is hereby GRANTED. [* 6] Based upon the foregoing, it is hereby directed that: 1) the instant Nassau County Supreme Cour matter In the Matter of the Application of Lorraine Kozon v. Joan Kozon, individually and as Trustee of the " Gladys Kozon Revocable Living Trust" under Agreement dated June be jointly tried Cour matter , 1998, Index No. 4838/11 , is to , in Nassau County Supreme Cour, with the Nassau County Surogate Intermediate Accounting by Joan Kozon, as Trustee of the " Irrevocable Trust" under Agreement dated June 26, 1998, Gladys Kozon as amended Gladys Kozon (now deceased), as Grantor and Trustee, and Joan Kozon , as Trustee File No. 2010- 359592/A; 2) upon presentation of a copy of this order, the clerk of the Nassau County Surogate Cour is to forthwith transfer the file in the mattr of Intermediate Accounting by Joan Kozon, as Trustee of the " Gladys Kozon Irrevocable Trust" under Agreement dated June , 1998 as amended Gladys Kozon (now deceased), as Grantor and Trustee , and Joan Kozon, as Trustee File No. 201O- 359592/A , to the Nassau County Supreme Cour upon the payment of all applicable fees , if any; Intermediate Accounting by Joan Kozon, as Trustee of 3) upon transfer of the matter of the " Gladys Kozon Irrevocable , 1998 Trust" under Agreement dated June amended Gladys Kozon (now deceased), as Grantor and Trustee , and Joan Kozon, as Trustee File No. 201O- 359592/A , to Nassau County Supreme Cour , the clerk of this cour is directed to issue a Nassau County Index Number to said matter upon payment of all applicable fees , if any and counsel shall thereafter file an RJI; and 4) all paries shall serve upon any par so demanding copies of disclosure documents heretofore obtained in the other action; [* 7] 5) all matters of trial practice , including the right to open and close , are reserved to the Justice presiding at the joint trial; 6) all papers shall reflect the joint status of these actions; 7) upon completion of discovery, the paries shall fie separate notes of issues and certificates of readiness; and 8) each par shall be entitled to enter separate judgments and bil of costs and disbursements , in each action respectively, if costs are allowed. It is fuher ordered that the paries shall appear for a Preliminar September 26 2011 , at 9:30 a. Supreme Cour Drive , Conference on , at the Preliminar Conference Desk in the lower level of 100 Mineola, New York , to schedule all discovery proceedings. A copy of this Order shall be served on all paries and on the DCM Case Coordinator. There will be no adjourents , except by formal application pursuant to 22 NYCRR ~ 125. This constitutes the Decision and Order of this Cour. Dated: Mineola, New York August 12 ENTE, RED 2011 AUG 1 6 2011 NASSAU COUNTY S OFf\CE COUNTY CLERK'

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