Matter of Lynch (Palumbo)

[*1] Matter of Lynch (Palumbo) 2014 NY Slip Op 51415(U) Decided on September 12, 2014 Sur Ct, Nassau County McCarty , J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 12, 2014
Sur Ct, Nassau County

In the Matter of the Application of Julianne Lynch in her capacity as administrator of the Estate of Patricia Palumbo against Thomas Palumbo to invalidate the purported Patricia Palumbo Revocable Trust dated February 7, 2006, and a Purported Deed to the property located at 36 Mellow Lane to Patricia Palumbo, as Trustee of the Patricia Palumbo Revocable Trust dated February 7, 2006.



2014-379145/A



Jonathan E. Kroll & Asssociates, PLLC

400 Garden City Plaza, Suite 435

Garden City, NY 11530

(for Petitioner Julianne Lynch)

Quinn & Tyrrell

3330 Park Avenue

Wantagh, NY 11793

(for Respondent Thomas Palumbo)
Edward W. McCarty, J.

By this application pursuant to SCPA §501 (1) (a), Julianne Lynch seeks to transfer to this court a hold over proceeding pending in the District Court of Nassau County, First District, under Index No. L & T 001318-14 ["L & T proceeding"], in which she is the respondent tenant and Thomas Palumbo, as trustee, is the petitioner landlord. The motion is opposed by the trustee.

The premises which is the subject of the L & T proceeding is a single-family house located at 36 Meadow Lane in Westbury, New York ["the Property"]. By contemporaneous trust instrument and deed (both dated February 7, 2006), the Property was conveyed to the trust. The grantor, Patricia, (Julianne and Thomas are two of her four surviving children) reserved a life estate in the Property to herself and upon her death, which occurred on November 3, 2010, the trust provides effectively for the sale of the Property and some specific and residuary distributions from the proceeds thereof. There is no distribution to Julianne. Since the death of the grantor/trustee, her son Thomas has served as trustee.

It appears that for many years prior to her mother's death Julianne and other members of her family (apparently her children) lived at the Property. Other than the fact that the customary [*2]carrying charges are being paid since Patricia's death, there are no other indications of the nature of Julianne's occupancy other than the statement by Thomas in his answer to the invalidation proceeding that she and her family have lived rent free at the Property for "over a decade," desire to continue to do so, and/or use and occupancy has not been paid for the past three years.

The L & T proceeding was commenced on or about March 3, 2014. After several adjournments, this court is advised it is now set for trial on September 15, 2014 at 2:00 p.m.

There were no proceedings pending in this court whatsoever until after the commencement of the case in District Court. Julianne then sought and was granted limited letters of administration on May 19, 2014 for the purpose of commencing an action to invalidate the trust and the deed and brought on such a proceeding here on or about May 21, 2014 simultaneously with the making of this application.

Julianne advances in support of her transfer application that failing to do so might result in "inconsistent results."[FN1] Thomas counters that the invalidation petition is wholly without merit,

that any relief sought by Julianne in this court came only after he started the summary proceeding, and that her petition and this application are nothing more than a ruse for the purpose of delay of that proceeding.

SCPA Section 501 (1) (a) vests the Surrogate with the discretion to transfer to itself any action or proceeding pending in any other court [other than Supreme Court] " . . . which affects or relates to the administration of an estate . . . " it has jurisdiction over.

The statute does not say that every litigation involving an estate must be removed to, transferred to or heard in the Surrogate's Court. As noted in the above recitation of the background and history, there were no proceedings involving this trust or the estate of Patricia

Palumbo at all at the time of the commencement of the holdover. The invalidation petition filed here and its timing smacks of an effort to defer adjudication.

The trust was administered for four years prior to Patricia's death and some three plus years thereafter without the need for any judicial intervention. The issue in District Court is the right to possession and at what cost. That action is a summary proceeding by its nature to be resolved expeditiously. If as requested by Julianne that matter be removed to this court and consolidated with her petition, the case could take years to be adjudicated at substantial prejudice to the trust. While it is true that Julianne has a potential interest in and right to occupy the Property [not to the exclusion of other distributee siblings], that interest is both remote and speculative.

For the foregoing reasons the motion is denied.

This constitutes the decision and order of the court.

Dated: September 12, 2014EDWARD W. McCARTY III

Judge of the

Surrogate's Court

Footnotes

Footnote 1:It is only by a reading of her answer in the L & T proceeding that theory of her argument may be seen. In an affirmative defense she contends she is an owner of the Property. The logic appears to be that if her mother left no will (there is no reference to a will by either side)and she is able to invalidate the trust/deed she would appear to have a one-fifth interest in the Property in intestacy.