Matter of Mancuso

[*1] Matter of Mancuso 2006 NY Slip Op 52151(U) [13 Misc 3d 1237(A)] Decided on November 9, 2006 Surrogate's Court, Kings County Tomei, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2006
Surrogate's Court, Kings County

In the Matter of the Estate of Faye Mancuso, Deceased.



181/00



For the Movant (Michael Pizzi)

Michael Monte, Esq.

Connors & Sullivan

620 Third Avenue

Brooklyn, New York 11209

For Proponent (Sebastian Grassi)

Kevin Farrelly, Esq.

Gruen & Farrelly

500 Fifth Avenue

New York, New York 10110

Albert Tomei, J.

This is a motion by the proponent of a will denied probate to file objections to the probate of an earlier will.

Background

Faye Mancuso died on January 9, 2000. She signed a will, dated January 7, 2000, two days before her death (the "2000 will") which left her entire estate to Michael Pizzi ("Pizzi"). She had a prior will, dated August 31, 1987 (the "1987 will"), under which she left her estate to her brother Carmine and sister Antoinette. They both predeceased her and the 1987 will provided that if they did, she left $10,000 to the Servants of Relief for Incurable Cancer and the remainder to her cousin, Sebastian Grassi ("Grassi"), and his wife, Gloria Grassi.

Pizzi filed a proceeding to probate the 2000 will, to which Grassi filed objections. After an eight day trial, the jury found that the decedent lacked testamentary capacity and that the execution of the 2000 will was the result of undue influence and the 2000 will was denied probate. Pizzi has appealed the denial of probate. Pending appeal, he moved in this court for a stay, which was denied. Pizzi moved in the Appellate Department for a stay of the probate proceeding, pending appeal, which was also denied. [*2]

Grassi filed a petition to probate the 1987 will. Grassi has been issued temporary letters of administration and seeks to probate the 1987 will, to which no objections have been filed. Pizzi now seeks: (1) leave to file objections to the 1987 will, (2) a stay pending appeal and (3) an order requiring the temporary administrator to file a bond pending appeal.

Leave to File Objections

In order to file objections, the prospective objector must have an interest in the estate that would be adversely affected by the admission of the will to probate (SCPA 1410). Pizzi argues that he has standing because he has an interest in the estate and would be adversely affected by probate of the 1987 will.

Pizzi, as an appellant, has a contingent interest in the estate. However, this is not sufficient to file objections to the probate of a will. He must also be adversely affected by probate of the will. The adverse consequences must be the direct result from the admission of the will to probate (Matter of Turner, 86 Misc 2d 132 [Sur Ct, Albany County 1976]). The validity of a will can only be contested by those who profit from its rejection (Matter of Davis, 182 NY 468 [1905]; Matter of Chadwell, 55 Misc 2d 1033 [Sur Ct, Dutchess County 1968]). If the party would receive the same amount, or nothing, whether or not the will is admitted to probate, he or she is not prejudiced by the admission of the will to probate and has no standing to object (Matter of Waldman, 1 AD2d 980 [2d Dept 1956]; Matter of Silverman, 91 Misc 2d 125 [Sur Ct, NY County 1977]; Matter of Turner, supra; Matter of Basile, 63 Misc 2d 845 [Sur Ct, Suffolk County 1970]). "[W]here a person is not a distributee of the decedent and will receive nothing from his estate if the will is denied probate, such person will not be permitted to object to it." (Matter of Chaldwell, supra, at 1034).

Applying this test, it is clear that Pizzi is not adversely affected by the probate of the 1987 will. Pizzi's interest is not affected whether or not the 1987 will is admitted to probate. In either case, Pizzi receives nothing from the estate. His interest is solely contingent on his appeal being successful and, if it is, his rights will be established by the Appellate Division, whether or not the 1987 will is admitted to probate. The proof that Pizzi has no adverse interest is that the objections Pizzi proposes are without merit in a proceeding to probate the 1987 will. Stripped of their verbiage, the only ground on which Pizzi objects to the probate of the 1987 will is that there is a valid later will, i.e., the 2000 will. However, this claim has already been determined in the prior trial and been rejected.

Pizzi next argues that the court should permit him to intervene under its discretion to permit any party with "a fair or slightly possible pecuniary interest" to intervene, citing Matter of Brainard, (281 AD 841 [2d Dept 1953]). There is no merit to this argument either. In determining whether to permit permissive intervention, the court should consider the nature of the claim, whether there are common questions of law or fact between the two claims and whether intervention will unduly delay the proceeding (CPLR 1013). In the instant case, the proposed objections are legally insufficient to deny probate to the 1987 will; there are no common questions of law or fact raised in a proceeding to probate an earlier will; and intervention will needlessly delay the probate proceedings. [*3]

In addition, the courts have required that the proposed intervenor have a "real and substantial interest in the outcome of the action." (Plantech Housing, Inc. v Conlan, 74 AD2d 920 [2d Dept 1980], appeal dismissed 51 NY2d 862; St. Joseph's Hospital Health Ctr. v Dept. Of Health, 224 AD2d 1008 [4th Dept 1996]; United Services Automobile Assoc. v Graham, 21 AD2d 657 [1st Dept 1964]). As noted above, Pizzi has no interest in the current probate proceeding. Whether the 1987 will is admitted to probate or intestacy is found, he will receive nothing. Any rights he may have are conditional upon a favorable determination of his appeal. If he is successful, he will be able to assert his rights under the 2001 will, whether or not the 1987 will is admitted to probate, since the successful appeal would result in any decision in the instant proceeding being vacated. If he is unsuccessful, he has no interest in the estate at all. In either case, his rights are not conditioned upon a determination in the instant proceeding.

Pizzi's reliance on Matter of Brainard (supra) is without merit. In Brainard, the decedent's husband filed to probate the will. He did not cite the decedent's grandnieces. (Since the decedent was survived by a spouse, the grandnieces were not distributees entitled to file objections unless the spouse's status could be defeated.) The Surrogate held that since the grandnieces were potentially interested in the proceedings, they should be cited, so that they would have the chance to prove that the marriage was invalid, or that the spouse abandoned the decedent. The court stayed the probate proceeding until they were cited or waived citation. In the instant case, the 2001 will has already been determined to be invalid by a jury. Therefore, there is nothing to try. Based on the above, the court denies Pizzi's motion to intervene in the proceeding to probate the earlier will.

Application for a Stay

Pizzi next asks that the court stay the probate proceeding until his appeal is heard and determined. The affirmation of his attorney states that no prior application for this relief has been made. However, in fact, Pizzi has applied for a stay twice and been denied each time. The first application was his application to this court for a stay pending appeal, which was denied. The second application was his application to the Appellate Division, which was denied. Despite these applications, Pizzi's attorney insists that there was no prior application, arguing that the prior applications were made in a prior proceeding. This is complete sophistry. The only basis upon which he claims standing in this proceeding is his claim as a litigant in the prior proceeding. The applications for stays in connection with the adverse jury verdict, in this court and the Appellate Division, could only have been for stays of further proceedings, i.e., of a proceeding to probate the prior will (or for letters of administration). These prior applications were denied. Having denied Pizzi's prior motions to set aside the jury verdict as a matter of law and as against the weight of the evidence and for a stay pending appeal, the instant motion for a stay pending the determination of his appeal is denied.

Application for a bond pending appeal

Finally, Pizzi requests that the court require Grassi to file a bond. He argues that Grassi is a resident of Florida. He argues that If the 1987 instrument is admitted to probate, there will be nothing to prohibit Grassi from transferring the assets of the [*4]estate to himself and his wife. Pizzi claims that he will suffer prejudice if his appeal is successful and the assets will already have been distributed.

Admission of the 1987 will to probate will not deprive Pizzi of his rights if his appeal is successful. Grassi has full knowledge of Mr. Pizzi's claim and of the status of the appeal. Except for a small bequest to charity, he and his wife are the sole beneficiaries of the estate. Therefore, they would be liable to Pizzi if the estate were distributed prior to a final determination on the appeal.[FN1]

Grassi's Cross-Motion

Grassi cross-moves for sanctions. 22 NYCRR §130-1.1 provides the court with the discretion in any civil action or proceeding to award costs, in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys fees, resulting from frivolous conduct (22 NYCRR §130-1.1[a]). In addition, the court may impose financial sanctions upon any party or attorney who engages in frivolous conduct (id.). The court may impose the payment of costs or financial sanctions upon either the party or counsel.

Conduct is frivolous if it is completely without merit and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; is undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another or asserts false material statements of fact. The award of costs or imposition of sanctions may be made upon motion after a reasonable opportunity to be heard. The making of a cross-motion for sanctions provides adequate notice that such relief would be considered and rendered a formal hearing unnecessary (Dutch Church v 198 Broadway,76 NY2d 411, 413, fn [1990]).

In the instant case, it is clear from the record that the motion to file objections to the probate of the 1987 will by the unsuccessful proponent of the 2000 will is frivolous.

There is absolutely no merit to the claim that the unsuccessful proponent of a will found to be invalid is adversely affected by the probate of the earlier will. In such a case, the unsuccessful proponent's only remedy is to appeal. Whether he is ultimately successful is not dependent on defeating the probate proceeding. The proof of the lack of merit is that even if the objections were allowed, they would be dismissed at trial as a matter of law.

In Matter of Carey (236 AD2d 781 [4th Dept 1997]), the Appellate Division affirmed the imposition of sanctions against the attorney named as executor in the will for moving for authority to file objections to the probate of the codicil which appointed the decedent's daughter as executor. The Surrogate had found that the movant was a fiduciary named in a prior instrument who was acting solely to preserve his right to commissions in opposing probate to the codicil and denied the motion to file objections (SCPA 1410). The Surrogate then denied the daughter's cross-motion for sanctions. On appeal, the Appellate Division affirmed the denial of the motion to file objections and [*5]reversed the denial of sanctions. "In our view, sanctions are warranted as a result of objectant's bad faith and undue expense and unnecessary delay that objectant has caused in administration of the estate." (id. at 782).

In the instant case, the motion is not only frivolous but in bad faith. The attorney for Pizzi has affirmed that there was no prior motion for a stay. When questioned, he attempted to argue that because the instant probate proceeding was a new proceeding, there technically was no prior motion for a stay. This attempt to deceive the court ignored the fact that Pizzi moved to stay all proceedings (including the projected proceeding to probate the prior will) in this court and the Appellate Division, without success. Such disingenuousness by an attorney, who is an officer of the court, is evidence of bad faith in bringing the motion.

Based on the above, Marc Monte, Esq., attorney for Michael Pizzi, is sanctioned in the sum of $500.00, payable to the Lawyer's Fund for Client Protection of the State of New York. As to that part of the cross-motion which asks that reasonable attorneys fees for the attorney for proponent be assessed against Pizzi and his attorney, Kevin Farrelly, Esq., is directed to submit a supplemental affidavit documenting the time he spent representing proponent in this motion for the purpose of calculating an award of an attorney's fee (22 NYCRR §130-1.1[a]).

Settle order.

HON. ALBERT TOMEI

Acting Surrogate

Dated: November, 2006 Footnotes

Footnote 1: As noted above, since he has appealed the jury verdict against him, he doeshave a contingent interest in the estate. There are a number of ways which Pizzimay protect his contingent interest. However, challenging the probate of the1987 will is not one of them.