Matter of Bernfeld

[*1] Matter of Bernfeld 2014 NY Slip Op 51107(U) Decided on June 30, 2014 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2014
Sur Ct, Nassau County

Application by Madelaine Bernfeld, as Executor of the Estate of Michael Bernfeld, Deceased, For Discovery and Turnover of Assets Pursuant to SCPA 2103; and/or For the Proper Valuation, etc., of Property/Assets of the Estate Pursuant to SCPA 2107.



358300/B



Kaufman & Serota, Esqs.

119 North Park Avenue

Suite 308

Rockville Centre, NY 11570

(for petitioner)

Ancona Associates

220 Old Country Road

Mineola, NY 11501

(for respondent, Yakov Kurilenko, D.D.S.
Edward W. McCarty III, J.

Before the court are motions filed on behalf of Madelaine Bernfeld, as executor of the estate of Michael Bernfeld. The motions were filed pursuant to CPLR Article 31, including but not limited to CPLR 3122, 3124, and 3126, and pursuant to NYCRR Part 130, Subpart 130-1 Section 130-1.1.

BACKGROUND

As set forth in this court's prior decision herein (Matter of Bernfeld, 43 Misc 3d 1208 [A] [Sur Ct, Nassau County 2014]) Madelaine Bernfeld ("Bernfeld," or "the executor") is the surviving spouse of decedent, Michael Bernfeld (the "decedent"), who died on September 29, 2009. This court admitted decedent's will to probate on May 20, 2010, and issued letters [*2]testamentary to Bernfeld, the nominated executor and sole beneficiary under the will.

Decedent was a dentist in Queens County, who practiced withYakov Kurilenko ("Kurilenko") in a professional corporation titled "Michael Bernfeld, D.D.S. and Yakov Kurilenko, D.D.S., P.C.", and/or d/b/a "Howard Beach Dental Associates" (collectively, the "dental PC"), in accordance with a corporate amendment effective October 28, 2004. The parties dispute whether decedent's interest in the dental PC at the time of his death was 75% or 100%.[FN1]

Following the death of decedent, Bernfeld demanded that Kurilenko produce the corporate share certificates reflecting Kurilenko's interest in the dental PC, if any, but the corporate certificates have not been produced. Counsel for Bernfeld, Stuart Serota, Esq., ("Serota"), asserts that Kurilenko cannot produce the certificates because he never received them, having never paid the $300,000.00 Kurilenko was required to pay to receive shares in the dental PC. Serota asserts that since decedent's death, Kurilenko took unauthorized custody and control of the dental PC books and records located in the dental PC office and has refused to provide the executor or her counsel with access or photocopies, despite Kurilenko's obligation to do so pursuant to the executor's demands for discovery and inspection and a preliminary conference order consented to by counsel for each party. Further, Serota alleges that Kurilenko took possession from the office of the dental PC's certified public accountant of all of the dental PC's files, books and records that were located there.

THE MOTIONS

The motions presently before the court seek the following relief:

(a) Pursuant to CPLR 3124 and/or 3126 and 3122, compelling respondent, Yakov Kurilenko, D.D.S., to comply with and answer petitioner's combined discovery notice and demands to respondent and compelling the respondent to produce at this court, on a date and time certain to be set by the court, all documents demanded by petitioner; and/or

(b) Pursuant to CPLR 3126 and other applicable law, dismissing in its entirety with prejudice respondent's response in this proceeding, striking and dismissing with prejudice and precluding the respondent from proffering any evidence or testimony in opposition to the petition and related relief at any trial or inquest thereon, on the basis of respondent's willful failure to disclose information and produce documents for inspection in response to petitioner's combined discovery notice and demands and in willful violation of the preliminary conference order;

(c) Pursuant to 22 NYCRR Part 130, Subpart 130-1 Section 130-1.1, ordering respondent to pay to petitioner the costs of making this motion, which is $5,000.00 to date; and

(d) Pursuant to 22 NYCRR Part 130, Subpart 130-1 Section 130-1.1, ordering respondent to pay to petitioner all additional costs in connection with this motion incurred after the date of filing.

The present motions were filed on March 18, 2014 and made returnable on March 26, 2014.[FN2] Motions seeking essentially the same relief had previously been filed with the court on January 2, 2014, and were returnable on January 8, 2014. This court addressed the prior motions [*3]in its March 31, 2014 decision (Matter of Bernfeld, supra) and granted Bernfeld's motions to the following extent:

1. Kurilenko was ordered to fully comply with the Demands and to produce every single document demanded by Bernfeld but not yet produced, within 45 days following service of a copy of this order with notice of entry. In connection with any document not so produced, Kurilenko was directed to file an affidavit stating the efforts he made to search for the demanded documents. Further, Kurilenko was ordered to set forth in his affidavit to and from whom he, or someone acting on his behalf, ever transferred possession, custody or control, directly or indirectly, of any books, records, financial documents and corporate documents of and concerning the dental PC during the time periods covered by the outstanding Demands.

2. The court directed that in the event that Kurilenko failed to timely and fully comply with the above order, his response in this proceeding would be dismissed in its entirety with prejudice, and Kurilenko would be precluded from proffering any evidence or testimony in opposition to Bernfeld's petition and related relief at any trial or inquest thereon.

The balance of the relief sought by Bernfeld, in which she asked the court to (i) allow her forensic accountants full access to the books and records of the dental PC for the period beginning January 1, 2007 to the present date; (ii) determine that Kurilenko is not a shareholder of the dental PC and lacks the status of a shareholder because he failed to perform the condition necessary for obtaining ownership and shareholder status; (iii) appoint a receiver; (iv) determine the amount owed by Kurilenko to decedent's estate and/or the dental PC, enter judgment and order Kurilenko to pay that amount by a date certain; (v) determine the value of decedent's interest in the dental PC, direct how the asset should be marshaled and disbursed to Bernfeld, and upon such full disbursement, release the receiver, if appointed; and (vi) direct Kurilenko to pay to Bernfeld the costs of making this motion, was denied without prejudice.

The present motions are supported by an affirmation of good faith and a memorandum of law. Counsel for Kurilenko filed opposition to the present motions, and counsel for Bernfeld filed reply affirmations.

ANALYSIS AND CONCLUSION

As noted above, the present motions are essentially the same as prior motions filed with this court, and these motions were filed while the prior motions were sub judice and just days before this court issued its decisions and orders. This duplicative motion practice caused a delay in these proceedings, as the prior decisions set May 22, 2014 for a scheduling and compliance conference, and Bernfeld's attorneys requested an adjournment of that conference on the grounds that additional motions were pending.

At the same time, the court notes that its prior decisions and orders directed Kurilenko to fully and timely comply with the demands and the court's further instructions within 45 days following service of a copy of this order with notice of entry. Failure to comply will result in the dismissal of Kurilenko's response and the preclusion of Kurilenko from offering any testimony or evidence at a trial of Bernfeld's petition and request for related relief.

The motions are denied as redundant.

The compliance and scheduling conference has been rescheduled for July 29, 2014 at [*4]2:15 p.m.[FN3] This constitutes the decision and order of the court.Dated: June 30, 2014

EDWARD W. McCARTY III

Judge of the

Surrogate's Court

Footnotes

Footnote 1:Kurilenko's claim that he owns 25% of the dental PC shares is disputed by Bernfeld, who asserts that 100% of the shares are owned by the estate.

Footnote 2:Currently pending before the court is another motion, filed on behalf of Kurilenko on May 13, 2014, which seeks to quash a subpoena duces tecum served on Michelle Ghusson, D.D.S., also known as Michelle Kurilenko, D.D.S. That motion will be addressed in a separate decision.

Footnote 3:The conference will be conducted whether or not the court's decision in connection with Kurilenko's motion to quash, as discussed in footnote (2) above, is issued beforehand.