Matter of Kornicki

[*1] Matter of Kornicki 2013 NY Slip Op 51606(U) Decided on September 30, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2013
Sur Ct, Nassau County

In the Matter of the Probate Proceeding of the Last Will of and Testament of Manny Kornicki, a/k/a MANES KORNICKI, Deceased.



342334/L



The appearance of counsel are as follows:

Ms. Terri Kornicki (pro se)

3220 Oxford Ave.

Bronx, NY 10463

Gina Raio Bitsimis, Esq. (for movant)

9 Carriage Ct.

Dix Hills, NY 11746

Joseph P. Gaffney, Esq. (for respondent)

Eisenberg & Baum

24 Union Square East. 4th Fl.

New York, NY 10003

Edward W. McCarty III, J.

This is a motion, by a person appearing pro se, for an order vacating a decree of probate and pending a decision, suspending letters testamentary.

Movant appears to have several grounds for vacating the decree. An application to vacate a decree must be brought by petition and citation.

However, as one of the grounds alleged by movant is that the decedent's spouse was unrepresented in the probate proceeding, the court has reviewed its files to determine whether there was a jurisdictional defect.

By decision dated September 30, 2010, the court dismissed movant's objections to probate. That order was appealed and the appeal was dismissed by an order of the Appellate Division, dated December 5, 2012. The decision of September 30, 2010 notes that the decedent's spouse was represented by Rubin Shur and Ellyn Kravitz, Esq., who were appointed her guardians under Article 81 of the Mental Hygiene Law. The notice of settlement of the probate decree was served upon Rubin Shur and a decree of probate was signed on October 18, 2010.

There is currently a turnover proceeding commenced by the estate against the movant for the payment of $3,000,000 alleged to have been diverted from decedent and his spouse.

The motion to vacate the decree and suspend letters testamentary is denied. [*2]

Respondent alleges that the motion is frivolous and seeks reimbursement for legal fees

and expenses pursuant to NYCRR sec 130-1.1 [a].

Conduct is frivolous when a party's position is without legal merit, is undertaken to unduly prolong litigation or harass or injure another or where the party makes material statements which are false (Yenom Corp.v Wooseter St., Inc., 33 AD3d 67 [1st Dept 2006]; Household Bank Region v Stickles, 276 AD2d 940 [3d Dept 2000]).

The motion should be considered in the context of all of the litigation in this proceeding. and the fact that the movant seeks to relitigate issues which have already been determined on the merits (Levy v Carol Mgt. Corp., 260 AD2d 27 [1st Dept 1999]).

Based upon all of these factors, the court finds that movant's conduct is frivolous and respondent is entitled to reimbursement for attorneys' fees and expenses (Greene v Merchants & Businessmen's Mut. Ins. Co., 259 AD2d 519 [2d Dept 1999]). Respondent's counsel is directed to serve and file an affirmation of legal services and costs for opposing the instant motion by October 17, 2013. Movant may file opposition on or before October 31, 2013 on which date the matter will be submitted for decision on the issue of the appropriate sanction to be imposed on the movant.

This is the decision and order of the court. No further order need be submitted.

Dated: September 30, 2013

Edward W. McCarty III

Judge of the

Surrogate's Court