Matter of Wagner

[*1] Matter of Wagner 2010 NY Slip Op 52454(U) Decided on October 14, 2010 Sur Ct, Kings County Lopez Torres, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2010
Sur Ct, Kings County

In the Matter of Discovery Proceeding, Estate of Frederick Wagner, Deceased.



2010-748A



Counsel for Movants: Joshua Annenbert, Esq., of Jan Myer & Associates, P.C.

Counsel for Respondent: Leo D. Beitner, Esq., of Seth Rubenstein, P.C.

Margarita Lopez Torres, J.

In this contested discovery proceeding, Betty Sebrow, David Sebrow and Joel Weiss (individually, Betty, David and Joel, and collectively, the movants) seek to dismiss a petition to discover property withheld, pursuant to SCPA §§2103 and 2104, filed by Rivka Wagner (Rivka), as administrator of the estate of Frederick Wagner (the decedent). The movants assert that the instant discovery proceeding must be dismissed pursuant to CPLR §3211(a)(2) and (a)(4), on the grounds that this Court lacks jurisdiction over the instant matter due to the pendency of a prior and active litigation between the same parties before another court. In addition, the movants seek sanctions and attorneys' fees pursuant to 22 N.Y.C.R.R. 130-1.1, asserting that the instant discovery proceeding is needless and frivolous, and that Rivka wilfully failed to disclose to this Court the prior pending action, including the issuance of a restraining order therein.

Factual and Procedural Background

The decedent died intestate on November 23, 2009. The decedent is survived by his spouse, Rivka,[FN1] and had no issue. The estate of the decedent is alleged by Rivka to consist of certain real property, located at 50 Lee Avenue, Brooklyn, New York, as well as certain personal property therein. This Court issued Letters of Administration to Rivka on March 11, 2010.

Rivka asserts that the decedent was taken, without her knowledge, on October 23, [*2]2009, by David to the home he shares with Betty, his wife and a niece of the decedent. Rivka alleges that David returned the decedent, ill and unresponsive, to the family apartment the following evening. The decedent was immediately hospitalized and remained there, where he died one month later.

Shortly before the decedent's death, Rivka attempted to record a deed to the real property, dated November 2, 2009, reflecting the transfer of the real property by the decedent to herself (November 2 deed). When her filing was rejected by the Office of the City Register, Rivka discovered that another deed to the real property (Sebrow deed), transferring ownership from the decedent to Betty, had been filed on November 12, 2009. The Sebrow deed is dated November 6, 2009, and bears Joel's seal as a notary, dated November 8, 2009.

Three days before the decedent's death, Rivka commenced an action against Betty and Joel in supreme court,[FN2] seeking to quiet title to the real property pursuant to RPAPL §1501, and alleging, inter alia, fraud, unjust enrichment, conversion, recovery of chattel/replevin and trespass (the supreme court action). Betty and Weiss cross-petitioned, and on February 5, 2010, the supreme court issued an order, directing that "there shall be a mutual restraint on both parties with respect to the [real property] as set forth in [Rivka's] order to show cause" and that "all rents shall be paid into court for maintenance, etc. of the [real property], including past due rent."

Following entry of the supreme court order, Rivka filed a petition for letters of administration in this Court on February 24, 2010, pursuant to which letters were issued on March 11, 2010. On March 18, 2010, Rivka filed a petition to discover property withheld, seeking discovery of the movants with respect to the real property and certain personal property therein, as well as a direction for turnover. Pursuant thereto, this Court issued to the movants on April 21, 2010, an Order to Attend and Be Examined.[FN3] At the time she sought the order, Rivka did not inform this Court of the pendency of the supreme court action, nor of the existence of the supreme court order. The movants assert that they have incurred over $10,000 in legal fees and disbursements in response to the instant discovery proceeding. The movants seek the imposition of both sanctions and attorneys' fees.

Discussion

The movants assert that the instant petition must be dismissed pursuant to CPLR §§3211(a)(2) and (4), on the grounds that this Court lacks jurisdiction and that there exists a prior pending and active litigation regarding the same matter in another court.

1. Dismissal Pursuant to CPLR §3211(a)(2)

Rule 3211 of the CPLR governs motions to dismiss causes of action. Pursuant to §3211(a)(2), a party may move to dismiss a cause of action on the grounds that "the court has [*3]not jurisdiction of the subject matter of the cause of action." The instant proceeding involves a petition to discover and turn over property withheld, instituted by Rivka as administrator of the decedent's estate. Rivka seeks an inquiry "respecting such money, real or personal property including but not limited to [the real property], or the proceeds or value thereof, which should be paid or delivered to Rivka, ...."

The subject matter jurisdiction of the surrogate's court extends to all matters concerning the affairs of a decedent. See NY Const., art. VI, §12; SCPA §201. Indeed, the supreme court and the surrogate's court have concurrent jurisdiction in matters relating to decedents' estates. Matter of O'Hara, 85 AD2d 669, 670 (2d Dep't 1981). See also Gaentner v. Benkovich, 18 AD3d 424 (2d Dep't 2005). The power of the surrogate's court to determine issues relating to the affairs of a decedent includes its authority to determine a decedent's interest in property alleged to belong to her gross estate, as well as the rights of others claiming an interest in such property. SCPA §209(4). The fact that the instant proceeding is instituted as a discovery proceeding does not divest this Court of jurisdiction. "Questions as to ownership of assets alleged to be part of [a] decedent's estate frequently arise in the context of proceedings for the discovery of assets ... ." Estate of Bauman, 140 Misc 2d 412, 414 (Sur. Ct. New York County 1988). See also Estate of Carr, 113 Misc 2d 818, 819 (Sur. Ct. New York County 1982) ("[T]he title of persons to real property is decided in this court in the context of a variety of proceedings including proceedings for the discovery of assets.").

In the instant case, the disputed property, both real and personal, is located in Kings County and is alleged to constitute the primary asset of the decedent's estate. The decedent died intestate, and the question of title to the real property is determinative of what assets, if any, Rivka may marshal and distribute. It is without question that this Court has subject matter jurisdiction of the instant inquiry. Accordingly, movants' petition to dismiss the discovery proceeding pursuant to CPLR §3211(a)(2) is denied.

2. Dismissal Pursuant to CPLR § 3211(a)(4)

The movants additionally assert as grounds for dismissal the prior initiation and concurrent maintenance of the supreme court action. Pursuant to the provisions of CPLR §3211(a)(4), a party may move for dismissal of a cause of action on the grounds that "there is another action pending for the same cause of action in a court of any state or the United States; ...." This Court is vested with broad discretion to dismiss an action on the grounds that a separate action is pending in another venue. Whitney v. Whitney, 57 NY2d 731 (1982). "[I]t is necessary that there be substantial identity as to both the parties and the causes of action asserted in the respective actions" in order to merit dismissal pursuant to CPLR §3211(a)(4). White Light Productions, Inc. v. On the Scene Productions, Inc., 231 AD2d 90, 94 (1st Dep't 1997). See also Kent Development Co., Inc. v. Liccione, 37 NY2d 899 (1975); Nakazawa v. Horowitz, 50 AD3d 985, 986 (2d Dep't 2008).

The concept of "cause of action" is fluid, and courts refrain from insisting that the two competing actions be identical. Where the identity of the actionable wrongs alleged in each proceeding are the same and the issues raised in the subsequent action will be "disposed of" in the pending action, dismissal pursuant to CPLR §3211(a)(4) is warranted. Stanley Electrical Service, Inc. v. City of New York, 26 AD2d 951 (2d Dep't 1966), lv denied, 19 NY2d 629 (1967). "It is not necessary that the precise legal theories presented in the first proceeding also be [*4]presented in the second proceeding." Simonetti v. Larson, 44 AD3d 1028, 1029 (2d Dep't 2007). The court in Simonetti affirmed dismissal of a conversion action which had been instituted in supreme court subsequent to both the initiation of probate proceedings in the same county as well as administration proceedings in another state. The court stated that "both suits arise out of the same alleged actionable wrongs" (quoting Kent Development Co. V. Liccione, 37 NY2d at 901), and found that there existed substantial identity of parties and relief sought, noting that "other than semantic distinctions, there is no difference between the relief requested in the two suits, i.e., the recovery of the decedent's estate assets for distribution." Id.

Rivka asserts that the nature of the two proceedings are distinct, presenting differing theories of relief. The supreme court action seeks to quiet title to the real property, alleging fraudulent conveyance thereof and asserting priority of the November 2 deed. The instant discovery proceeding is inquisitorial in nature, seeking inquiry as to the real property and certain personal property therein and demanding return thereof to Rivka, as administrator of the decedent's estate. Rivka asserts that, in the discovery proceeding, she seeks to invalidate both the Sebrow deed and the November 2 deed, thus requiring inclusion of the real property in the decedent's gross estate. Rivka further asserts that the discovery proceeding seeks information unrelated to the relief sought in the supreme court action.[FN4]

Rivka's argument is unpersuasive. The actionable wrong alleged in both the instant discovery proceeding and the supreme court action is the wrongful transfer of the real property to Betty, and the relief requested is a determination of rightful ownership of the real property. Rivka seeks in both actions to gain title to the real property, whether by a determination that the November 2 deed has priority or by a determination that the real property is an asset of the decedent's estate, of which she is the sole distributee. The single desired result of both proceedings initiated by Rivka is possession of the real property. Hence, the Court finds that the causes of action asserted in both the supreme court action and the instant discovery proceeding are substantively identical.

Dismissal pursuant to CPLR §3211(a)(4) also requires a finding that the parties to both proceedings are substantially identical. Rivka first asserts the supreme court action is distinct from the instant discovery proceeding by virtue of David's inclusion as a party to the instant proceeding only. Rivka avers that this difference alone serves to distinguish the two proceedings sufficiently to avoid dismissal. Again, her argument is not persuasive. "The joinder of an additional defendant, in itself, need not result in the defeat of such a motion." Kent Development Co., Inc. V. Liccione, supra, at 901. Title to the real property will ultimately be determined, in either proceeding, to reside in either Betty, under the Sebrow deed, or Rivka, whether as decedent's sole distributee or under the November 2 deed. The inclusion of David as [*5]a party to the instant discovery proceeding does not affect the determination of the rights of the parties disputing ownership of the real property.

Rivka further asserts that her own diverse status in the two proceedings militates against dismissal. Rivka initiated the supreme court action, in her individual capacity, to quiet title to the real property prior to the death of the decedent. In the instant discovery proceeding, Rivka is acting as fiduciary of the decedent's estate, seeking to discover property alleged to be withheld by the movants.[FN5] It is well-settled that a party acting in her individual capacity is distinct from the same party acting in her representative capacity. The Court of Appeals stated in Leonard v. Pierce, 182 NY 431, 432 (1905), that

[i]t has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued.

See also Molino v. Putnam County, 29 NY2d 44, 49 (1971) ("The legal differences between individuals and estate representatives are practical as well as technical, and too well established to require discussion." ).

Nonetheless, courts have recognized exceptions to this general rule where strict adherence otherwise would result in a "legal absurdity." In re Finkelstein's Estate, 1 Misc 2d 1067, 1071 (Sur. Ct. Kings County 1955). "The test to be applied is whether a determination in the [first] proceeding would be res judicata in the second." In re Sullivan's Estate, 289 NY 323, 325 (1942). The doctrine of res judicata acts to preclude "future litigation between the same parties, or those in privity with the parties, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was either raised or could have been raised in a prior proceeding." Matter of Edward Joy Co. v. Hudacs, 199 AD2d 858, 859 (3d Dep't 1993).In order to establish privity between parties to separate actions, one must demonstrate a connection between the two "such that the interest of the nonparty can be said to have been represented in the prior proceeding." Green v. Sante Fe Industries, Inc., 70 NY2d 244, 253 (1987). The concept of privity "requires a flexible analysis of the facts and circumstances of the actual relationship between the party and the nonparty in the prior litigation." Evergreen Bank, N.A., v. Dashnaw, 246 AD2d 814, 816 (3d Dep't 1998).

In Matter of Clamp, 193 AD2d 601 (2d Dep't 1993), the appellate division affirmed the Surrogate's determination that the doctrine of res judicata precluded an executor's attempt to relitigate claims that the decedent's inter vivos transfer of real property was the product of fraud, duress or undue influence. In Clamp, the executor was not a party to the prior litigation in supreme court in her fiduciary capacity; rather, she and the other distributees each appeared in their individual capacities. The court, relying on Green v. Sante Fe Industries, supra, determined that privity existed, stating that "[s]ince the [executor] would personally benefit if the relief she seeks is granted in the Surrogate's court proceeding, she may not circumvent the doctrine of res [*6]judicata ... by relitigating her claims in her representative capacity." Id. at 602. See also Weiner v. Greyhound Bus Lines, Inc., 55 AD2d 189 (2d Dep't 1976) ( "There are instances in which a party suing in a representative capacity, but personally benefiting [sic] if a recovery is procured in either action, may be barred by an adverse decision in the prior action from instituting the second action." ).

In Roy-Nickles v. St. Mary's Hospital, 6 Misc 3d 1023(A), 2004 NY Slip Op. 51817(U) (Sup. Ct. Kings County 2004), the plaintiff in her individual capacity instituted a negligence suit following dismissal of a previous medical malpractice action, instituted in her representative capacity. The plaintiff argued that her diverse status in the two proceedings precluded application of res judicata to bar the subsequent suit. The court disagreed, dismissing the negligence suit and finding that "both actions involve the same parties and ... are based upon the same transaction or series of transactions. " The court noted that there are exceptions, "based upon reason and practical necessity," to the general rule distinguishing between a party's appearance in her individual capacity versus her representative capacity. Id.

In determining that there is a fundamental identity of interest between Rivka as an individual party to the supreme court action and her role as a fiduciary in the discovery proceeding, the Court notes that both actions were commenced by Rivka. Rivka has not occupied a defensive or responsive posture in any proceeding herein. Control of all litigation has resided with Rivka. Her goal remains the same in both proceedings, to wit, recovery of the property of her deceased husband. There is a mutuality of beneficial interest between Rivka as an individual in the supreme court action, and as a fiduciary in the instant proceeding, sufficient to establish privity and operate as an exception to the general rule articulated in Matter of Sullivan, supra, and recognized in Clamp and Roy-Nickles, supra. Maintenance of separate and simultaneous actions, for redress of the same alleged wrong, is unnecessary and duplicative. To permit such a course of action undermines the interests of judicial economy, and permits Rivka multiple bites of the judicial apple, so to speak.

Having determined that the causes of action and the parties in the instant discovery proceeding and the supreme court action are substantially identical, the Court must now determine which proceeding has priority. The general rule for dismissal pursuant to CPLR §3211(a)(4) requires that the competing action must have been commenced prior to the subject action. Izquierdo v. Cities Service Oil Co., 47 Misc 2d 1087 (Sup. Ct. Kings County 1965). Where, as in the instant case, "both tribunals, whose interference has been invoked, have equal or concurrent jurisdiction, it should continue to be exercised by that one whose process was first issued." Schuehle v. Reiman, 86 NY 270, 273 (1881). See also Manning v. Thorne, 73 AD3d 1136 (2d Dep't 2010); Burmax Company, Inc. v. B & S Industries, Inc., 135 AD2d 599 (2d Dep't 1987); Zeglen v. Zeglen, 150 AD2d 924 (3d Dep't 1989).

It is undisputed that Rivka instituted the instant discovery proceeding several months following commencement of the supreme court action and indeed some six weeks subsequent to the entry of the supreme court order. In fact, Rivka has been proceeding in supreme court for over a year, seeking resolution of title to the real property. On or about June 22, 2009, and five months prior to the decedent's demise, Rivka commenced an action in supreme court against the decedent, filing a Notice of Pendency seeking to have her name added to the original deed to the real property, and to prevent the decedent from conveying or [*7]encumbering it. Thus, it is without question that the supreme court action has priority over the instant discovery proceeding. The Court finds that the same cause of action, between the same parties, has been previously instituted and is currently pending before a court of concurrent jurisdiction which has already issued an order pertaining to the real property. Accordingly, this Court declines to exercise jurisdiction over the instant discovery proceeding, and the instant discovery proceeding is dismissed in accordance with the provisions of CPLR §3211(a)(4).

3. Imposition of Sanctions

The movants seek sanctions and attorneys' fees in the instant proceeding pursuant to 22 N.Y.C.R.R. 130-1.1, asserting that Rivka's discovery proceeding is frivolous and duplicative, and that Rivka has violated her duty of candor to this Court by failing to disclose the pendency of the supreme court action and the extant supreme court order. Rivka does not address her failure to so inform this Court at the time of submission of her application and petition. Rather, she asserts that, at the return date of the instant motion, this Court asked for an explanation of the failure to inform this Court of the sought-after transfer of the supreme court action. Such is not the case. This Court sought an explanation for Rivka's failure to advise it of the existence of the supreme court action and the outstanding order. Nonetheless, Rivka continues to assert that the earliest she was able to inform this Court of the requested transfer, a factor irrelevant to this Court's decision herein, was the return date for the instant motion. The Court finds Rivka's explanation to be inaccurate, insufficient and disingenuous.

Rivka initiated the instant discovery proceeding by application for an order to attend and be examined, an ex parte proceeding akin to an order to show cause and initially presented to this Court without notice to the movants. Pursuant to SCPA §203, proceedings in surrogate's court are special proceedings, and as such are governed by Article 4 of the CPLR. Pursuant to CPLR §402, "[w]here there is no adverse party the petition shall state the result of any prior application for similar relief and shall specify the new facts, if any, that were not previously shown." The requirement of such a representation, analogous to that set forth in CPLR §2217(b), "helps guard against judge-shopping' by a petitioner who is disappointed with the results of a prior application for the same relief." McKinney's Consolidated Laws of New York Annotated, Practice Commentaries by Vincent C. Alexander, C402:1 (2010). Cf. Markoff v. South Nassau Community Hospital, 91 AD2d 1064, 1065 (2d Dep't 1983) (holding that vacature of ex parte order on the grounds of failure to comply with CPLR §2217(b), where no prior ex parte application had been made, was improper as "the specter of co-ordinate review" was not raised).

Rivka's application accompanying the instant discovery petition was not supported by any such representation or affirmation. It is notable that the supreme court order was issued, as stated therein, upon consideration of an application by Rivka for an order to show cause. The application herein discloses nary a hint of any prior application, the results thereof, nor any new facts in support of the instant application. This grave omission, coupled with Rivka's dismissive explanation of her neglect in disclosing to this Court the pending supreme court action, does not inspire confidence that the requested relief in the prior application in fact sought substantively different relief than that requested herein.

Rivka, as fiduciary of the decedent's estate, owes "the utmost candor" to this Court.

[*8]In re Steven's Will, 92 N.Y.S.2d 226, 230 (Sur. Ct. Monroe County 1949). More profoundly, counsel for Rivka is an officer of the court, and as such owes a duty of candor to this tribunal pursuant to his professional ethical obligations. It is the ethical responsibility of counsel to maintain the highest standards of integrity. Code of Professional Responsibility, EC 1-1. Pursuant to the strictures of Disciplinary Rule 7-102(a)(3) [22 NYCRR §1200.33(a)(3)], an attorney shall not "knowingly fail to disclose that which [he] is required by law to reveal." While this Court expects no less than zealous representation of parties by their respective counsel, nevertheless it must be able to rely on the honesty and forthrightness of such counsel in the conduct of litigation before it. Such expectation includes, indeed demands, accurate and

timely disclosure of prior related proceedings and the results thereof, as well as the existence of concurrent related proceedings and any controlling orders therein.

The failure of Rivka and her counsel to advise this Court of the pendency of the supreme court action, and the restraining order issued therein, constitutes a material omission of fact. When an attorney misleads the court, "whether by a misrepresentation or a pregnant omission [,t]hat is misconduct." In re Lightfoot, 217 F.3d 914, 917 (7th Cir. 2000) (Posner, C.J.). See also Schindler v. Issler & Schrage, P.C., 262 AD2d 226 (1st Dep't 1999), lv dismissed, 94 NY2d 791 (1999). The instant proceeding would appear to have been initiated by Rivka as a means of moving determination of the disposition of the real property to a speedy conclusion. Absent full disclosure by her counsel regarding the prior supreme court action, this Court is left with the distinct impression that Rivka seeks relief herein that she feels is not forthcoming, perhaps quickly enough to suit her, in the prior proceeding. Such actions are offensive, both as an attempt to circumvent the strictures of the supreme court order and as an attempt to manipulate this Court into providing unwittingly that which has not been satisfactorily obtained elsewhere. See Garcia v. Silverman, 70 Misc 2d 537 (Civ. Ct. New York City 1972) (admonishing an attorney for submission of an order to show cause with a deficient affirmation which failed to reveal the existence of a prior proceeding and determination on the merits).

Although the supreme court order is not a final determination on the merits, it does serve to pause the inquiry therein. This Court will not be misled into providing relief in an action which is already being overseen by a tribunal of concurrent jurisdiction. Had Rivka and her counsel been forthcoming to this Court about the previously-instituted supreme court action and the outstanding order therein, fulfilling their duty of candor to this Court, the application for an order to attend and be examined likely would have been declined at the outset. Counsel's failure to disclose prior pending litigation, allowing simultaneous proceedings to consume the limited resources of the courts to resolve a single issue, "challenges the patience of this Court." Shirley M. v. William M., 152 Misc 2d 144 (Fam. Ct. Ulster County 1991).

Litigation that wastes the Court's time is deemed to be frivolous. CCS Communication Control, Inc., v. Kelly International Forwarding Co., 166 AD2d 173 (1st Dep't 1990). This Court again notes with alarm that the instant proceeding was brought almost six months after initiation of the supreme court action. Each proceeding has been the subject of extensive argument and motion practice in its respective venue, generating unnecessary costs and consuming the attention and resources of two separate tribunals. Rivka, having already chosen to invoke the jurisdiction of the supreme court, must pursue the discovery she requires in the context of that action. Although the language of the supreme court order does not explicitly [*9]forbid discovery, Rivka shall not be allowed a back door into proceedings limited therein by initiating process in a different venue, in violation of said order.

Pursuant to 22 N.Y.C.R.R.130-1.1, the Court has discretion to award costs or sanctions "upon a party or attorney who engages in frivolous conduct." Sanctions have been imposed for a range of actions that constitute frivolous conduct. See, e.g., Mercury Partners, Inc. v. White Eagle Partners, LLC, 74 AD3d 412 (1st Dep't 2010) (approving sanctions for wasting the time of the court and opposing counsel by withdrawing motion for summary judgment without notice); Owssom Builders, LLC, v. J & F Refrigeration Air Conditioning and Heating, Inc., 28 Misc 3d 1218(A) (Sup. Ct. Kings County 2010) (imposing sanctions for attempted relitigation of previously-determined claims). The instant proceeding asserts a cause of action and seeks relief identical to that which is the subject of a separate proceeding, currently maintained and prosecuted by Rivka, in another jurisdiction. This Court notes with particular dismay the fact, asserted in the movants' motion to dismiss and uncontested by Rivka, that Rivka's counsel was notified by movants' counsel of the frivolous and duplicative nature of the proceeding herein, and yet declined to withdraw the instant discovery petition at their urging. Rather, counsel for Rivka pursued the instant proceeding, regardless of the potential violation of the supreme court order or the unnecessary demands placed upon the resources of two tribunals. Attempts to maneuver this Court into providing relief that is under consideration, or may in fact have been denied, in a proper venue elsewhere will not be countenanced.

This Court finds that Rivka and her counsel have failed to meet the requirements of CPLR §402 by failing to disclose the pendency of a previously-instituted action upon submission of their ex parte order herein. Further, this Court finds that said failure violates the duty of candor owed to this Court, and constitutes frivolous conduct. Accordingly, sanctions are awarded against counsel for Rivka in the amount of $500.00 to be deposited with the Lawyer's Fund for Client Protection.

Further, the movants are granted the fair and reasonable legal fees incurred for this motion. The movants are directed to submit an Affirmation of Legal Services, with accompanying contemporaneous time records, no later than November 3, 2010, for a determination of costs to be awarded herein. Rivka is directed to submit a response to the reasonableness of the fees requested no later than November 24, 2010.

This constitutes the decision and order of the Court.

The Clerk of the Court is hereby directed to mail a copy of this decision to all parties who have appeared.

_______________________________HON. MARGARITA LÓPEZ TORRES

SurrogateDated: October, 2010 Footnotes

Footnote 1:The decedent and Rivka were married on December 25, 1968. The movants characterize Rivka as the decedent's "purported spouse" without articulating any grounds for disputing her status.

Footnote 2: Wagner v. Sebrow et al, Supreme Court Index No: 29641/09.

Footnote 3: Proceedings in both the supreme court and the Surrogate's court continue. The most recent amended complaint filed by Rivka in the supreme court action is dated March 18, 2010, and the parties entered into a stipulation resolving certain pleading infirmities on June 3, 2010. Betty filed an Answer with counterclaim on June 23, 2010. On June 25, 2010, Rivka moved in supreme court to have the supreme court action transferred to Surrogate's court. Subsequent to initiating the discovery proceedings in Surrogate's court, Rivka filed a Written Notice of Election on April 29, 2010, and on May 6, 2010, Rivka filed a petition to determine the validity and effect of election by a surviving spouse, pursuant to EPTL §5-1.1(A).

Footnote 4: Rivka's Affirmation in Opposition to the instant motion asserts that the purpose of the discovery proceeding includes an inquiry into an alleged break-in and theft at the real property, and into the circumstances of the final illness of the decedent. The petition for discovery asserts that the movants removed money, personal property and chattels from the real property, without characterizing such removal as a "break-in", and seeks discovery of the whereabouts of such property in addition to discovery of the circumstances of the alleged transfer of the real property. Rivka's complaint in the Supreme Court action does include a claim for recovery of chattels, However, there is no mention in the discovery petition itself of seeking information regarding the circumstances surrounding the onset of the decedent's final illness.

Footnote 5: In her fiduciary capacity, Rivka represents the interests of potential distributees of the decedent's estate, as well as any creditors thereof. The decedent was hospitalized for a month prior to his death, but there has been no assertion that any creditor is claiming under the decedent's estate at this time.