Matter of Lovell

[*1] Matter of Lovell 2004 NY Slip Op 51833(U) Decided on December 13, 2004 Surrogate's Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2004
Surrogate's Court, Dutchess County

In the Matter of the Estate of HELEN P. LOVELL, Deceased.



92562/2003



Thomas Whalen, Esq.

Whalen & Whalen

Attorneys for Estate

PO Box 24

Dover Plains, NY 12522

Bethany Ralph, Esq.

Attorney for Sheri Lovell O'Neill 3294 East Main Street

PO Box 7

Amenia, NY 12501

Carl Lodes, Esq.

Attorney for Michael Barlow

PO Box 806

1717 Route Six

Carmel, NY 10512

James D. Pagones, J.

Sheri Lovell O'Neill moves for an order extending her time to purchase real property known as 736 Old Post Road, Dover Plains, New York as provided in the decision and order of this Court dated August 26, 2004. That order provided as follows: "Based upon the foregoing facts and so as to achieve the most advantageous sale which will benefit the estate and its beneficiaries, the executor may offer the subject real estate for sale to Alan Parshley for the sum of $280,000.00 and pursuant to the remaining terms in the contract of sale to Barlow. In the event that sale cannot be completed, the executor may sell the subject real estate to Sheri Lovell O'Neill for the sum of $205,000.00. In the event that sale cannot be finalized, the executor may then sell the subject real estate to Michael Barlow for the sum of $200,000.00. The executor is further directed to proceed with all convenient speed to complete the sale of the premises, and in any event, no later than December 31, 2004. Leave of the court is required to extend this deadline."

The relevant facts are not in dispute on this application. On September 23, 2004 Michael Barlow filed a notice of appeal from my decision and order and subsequently moved in the Appellate Division for a stay. On November 8, 2004 the Appellate Division denied the application for a stay. Subsequent to my decision and order, the primary prospective purchaser, Alan Parshley, decided not to proceed with the contract to purchase the premises. Consequently, movant Sheri Lovell O'Neill, pursuant to my decision and order, notified the executor that she was prepared to close on the purchase and a closing was scheduled. Prior to the closing, movant was advised that the title company would not insure against Barlow's pending claim. Movant remains ready, willing and able to proceed with the purchase of the premises consistent with this Court's order as does the executor of the estate. Both parties are being impeded from effectuating the order of this Court by Mr. Barlow who has injected himself into this estate proceeding as a litigant.

The executor astutely notes that there are very practical reasons to avoid a further delay in selling the premises. Primary among them is that the onset of winter compels the expenditure of [*2]estate assets to heat the empty house. Additionally, the premises requires hazard insurance which will remain an estate expense until the premises is sold. The estate will also be responsible for additional property taxes as they accrue until the sale. These and other practical considerations originally compelled me to direct that the closing in this matter occur no later than December 31, 2004. Both the executor and Sheri Lovell O'Neill are prepared to comply with the order of this Court but may not do so as long as the cloud on title created by Barlow's pending appeal remains. If the court were to deny the instant application for an extension, the movant and executor would be compelled to close without any assurance that title was marketable imposing potential liabilities on both parties. On the other hand, the Court must not do anything which would effectively cut off Mr. Barlow's right to pursue his appeal. I am compelled to consider, furthermore, that Barlow's appeal may not be resolved for several months during which the carrying charges on the subject premises will continue to be paid by the estate. In the event that Barlow is unsuccessful on his appeal, the additional expense to the estate will amount to a waste of assets.

SCPA §1910 anticipates that in any case where the Court directs disposition of real estate, a bond will be furnished "to insure the execution of the order and the accounting by the fiduciary of all moneys received." Although section 1910 imposes the obligation upon the fiduciary of the estate, its underlying purpose inures to the benefit of each beneficiary of the estate. The statute protects the estate from any unnecessary losses incurred by the failure to carry out an explicit order by the Court for the sale of real property. SCPA §201(3) specifically provides: "The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires."

Michael Barlow has injected himself into these estate proceedings in the position of the fiduciary by appealing my decision directing the fiduciary to dispose of the subject real estate in a manner most beneficial to the estate. Both the fiduciary and the movant are prepared to fully comply with the order of this Court in a timely manner but have been thwarted by the cloud on title imposed by Barlow's appeal. Barlow facetiously offers to accept title to the premises with the existing cloud without acknowledging that the cloud may be removed by him at any time by withdrawing his appeal and therefore does not subject him to any risk in proceeding on the purchase as it would to the executor and Sheri Lovell O'Neill. Barlow has bootstrapped himself into position to circumvent my order directing the sale of the premises for the benefit of the estate. Under all of the circumstances presented, it is ordered that the instant motion is granted and the deadline for the sale of the subject property imposed by my decision and order dated [*3]August 26, 2004 shall be extended until forty-five (45) days after the appeal of Michael Barlow shall be finally determined. It is further ordered that pending the final determination of his appeal, Michael Barlow shall post a bond in the amount of $50,000.00 as security for any and all losses, including attorney's fees, incurred as the result of any delay in closing on the premises beyond December 31, 2004 as the result of an unsuccessful appeal.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

December 13, 2004

E N T E R

_______________________________________

HON. JAMES D. PAGONES, SURROGATE

To:

In Matter of the Estate of Helen Lovell, 12.13.04