Matter of Tilimbo

[*1] Matter of Tilimbo 2006 NY Slip Op 51939(U) [13 Misc 3d 1222(A)] Decided on October 13, 2006 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2006
Sur Ct, Bronx County

In the Matter of the Estate of Salvatore Tilimbo, Deceased.



583-P/05



Kenneth T. Wasserman, Esq., for Rose Tilimbo, Nina Sanders, and Anthony Casertano, movants

Peter J. Piergiovanni, Esq., for John Posimato, respondent

Lee L. Holzman, J.

In this estate in which there is a contested probate proceeding pending, the decedent was the defendant in a Supreme Court, Bronx County action (Index No.7857/2005), commenced by his sister and two other parties who are the objectants in the probate proceeding (the movants). The complaint in the Supreme Court action alleges, inter alia, that the decedent exerted undue influence on his sister to obtain a deed to her one-half interest in real property and converted funds held with the sister in a joint bank account. The movants now seek an order transferring the Supreme Court action to this Court and consolidating that action with the probate proceeding. The proponent in the probate proceeding, who is the respondent in this application, opposes the motion.

In support of transfer and consolidation, the movants contend that: (1) the action and proceeding have identical parties and common issues of fact and law; (2) the same attorney prepared both the challenged will and deed within a four-month period; (3) evidence relating to undue influence will be relevant with respect to the validity of both documents; (4) the allegation of conversion of the joint bank account is more properly before the Surrogate's Court as a result of the decedent's death; and, (5) although the probate proceeding is further advanced than the Supreme Court action, both are in the discovery stage, militating in favor of consolidation.

The respondent opposes the motion, contending that: (1) this court lacks the authority to transfer matters from the Supreme Court, and any transfer application must be made to the Supreme Court in the first instance; (2) the Supreme Court action is temporarily stayed pending the substitution of the fiduciary of the estate for the decedent as a defendant, and a transfer motion cannot be made to that court until preliminary or temporary letters issue; (3) consolidation is not appropriate, as the time to file a responsive pleading in the Supreme Court action had not yet expired prior to the decedent's death, whereas the instant probate proceeding is almost trial-ready; and, (4) the instant motion is merely a dilatory tactic, as evidenced by the movants' failure to serve discovery demands and subpoenas as discussed at an earlier conference with the court.

Although a party may seek this court's consent to receive for trial any action pending before the Supreme Court which affects or relates to the administration of a decedent's estate (SCPA 501[1][b]), only the Supreme Court can order the transfer of a proceeding pending before that court (CPLR 325[e]; SCPA 501[1][a]; see also Hoffman v. Sitkoff, 297 AD2d 205 [2002]; Carmel v Shor, 250 AD2d 475 [1998]; Matter of Hennelly, NYLJ, June 3, 2003, at 25, col 1). Consequently, the branch of the motion seeking an order directing transfer of the Supreme Court action must be made to the Supreme Court in the first instance.

Nevertheless, the gravamen of the Supreme Court causes of action clearly affect or relate [*2]to the administration of the decedent's estate (see SCPA 501[1][b]), and this Court has jurisdiction "over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto. . . ." (NY Const, art VI, § 12 [d]). As the pending Supreme Court action appears to fall squarely within this Court's jurisdictional imperative (see Matter of Hennelly, supra), if the Supreme Court in the exercise of its discretion deems that a transfer is warranted, then this Court consents to receive for trial the action pending in the Supreme Court which affects or relates to the administration of the decedent's estate (see SCPA 501[1][b]; Matter of Hennelly, supra). Regardless of whether the Supreme Court directs that the action be transferred, the movants may seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters by November 3, 2006.

As transfer of the Supreme Court action is dependent upon a motion to, and the exercise of discretion by the Supreme Court, any determination concerning the propriety of consolidating the Supreme Court action with the probate proceeding pending before this Court is premature at this time.

Accordingly, this decision constitutes the order of the court granting the motion only to the extent that this Court consents to the transfer of the Supreme Court action subject to an order of the Supreme Court directing such transfer. The Chief Clerk shall mail a copy of this decision and order to respective counsel for the movants and the respondent.

Settle order.

SURROGATE