Lebenthal & Co., LLC v Estate of Lazar

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Lebenthal & Co., LLC v Estate of Lazar 2017 NY Slip Op 31390(U) June 29, 2017 Supreme Court, New York County Docket Number: 153364/2013 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. "*.tiFlt" [*FILED: NEW YORK COUNTY CLERK 06/30/2017 02:28 PMI 1] ,,. ' i · •• NYSCEF DOC. NO. 90 ] INDEX NO. 153364/2013 RECEIVED NYSCEF: 06/30/2017 ' SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY j j 1 :~ PRESENT: ,·;, DEBRA A. JAMES PART 59 JQtice LEBENTHAL AND CO., LLC, Index No. 153364/2013 Interpleader-Plaintiff, Motion Date: 06/27/17 . ::;t ..·~:~.·.i····'.,: . '.'. " ·«».;. .· ";~ Motion Seq. No.: 003 ESTATE OF MILAN LAZAR OBRADOVICH BY LORI McNEELY, ESQ., AS ADMINISTRATOR . OR THE ESTATE,· BRAN KO OBRADOVICH, ZELJIKA STOJANOVIC a/k/a ZEHJIKA STOJANOVIC, ANNE MIELE and JOHN DOE (A fictitious name designating any unknown person who may claim an interest in the subject property), Interpleader-Defendants. The following papers, numbered 1 to 4 were read on this motiott for an orcfer directing release of the funds, currently hetd by the lnterpfeader-Plaintiff lebenthal attd Co., LLC on behalf of the Estate of Milan Lazar Obradovich by .Lori McNeely, Esq., as administrator ~f the estate. ; PAPERS NUMBE~D Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits 0 IQ w l 2, 3 Replying Affidavits - Exhibits Cross-Motion: 0 Yes 4 Im No ~ ~ w w L&. a:: > ...J ...J ::> Upon the foregoing papers, In this interpleader action, by Order of this court dated June 28, 2017, interpleader defendant Lori M. McNeely, as L&. I- 0 w CL tn w ~ S!? Administrator of the Estate of Milan Obradovich, has been substituted in place and stead of Milan Lazar Obradovich, Deceased. w tn <( The Order dated April 14, 2014 of this court restrained and 0 -w zo 0-1I- tn 0 ::> :E .., Check One: Im FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 1 of 5 CJ NON-FINAL DISPOSITION 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 06/30/2017 02:28 PM 2] NYSCEF DOC. NO. 90 INDEX NO. 153364/2013 RECEIVED NYSCEF: 06/30/2017 enjoined interpleader plaintiff Lebenthal and Co., LLC from transferring the traditional IRA rollover account (the account) with an account number of LEBxxx31 of interpleader; defendant Milan Lazar Obradovich, or any of the funds contained therein, pending further order of this Court or any other cburt of competent jurisdiction. Interpleader defendant Lori M. McNeely, as Administrator of the Estate of Milan Obradovich, now moves for an o~der, pursuant to CPLR 1006(f) directing that interpleader plaintiff Lebenthal and Co., LLC release of all funds, i t currently holds, now on 1 behalf of interpleader defendant Lori M. McNeely, Esq., an attorney licensed to practice law in the State of New Jersey, as the Administrator of the Estate of Milan Lazar Obradovich, to Lori M. McNeely, Esq. and thereafter be dismissed from the action and be discharged from all further liability. Inter~leader defendant Lori M. :McNeely has submitted proof of service of this motion upon plaintiff Lebenthal & Co., LLC, Branko Obradovich, Zeljika Stojanovic a/k/a Zeljika Stojanovic, and Anne Miele. The movant has also subm:itted an affirmation in support of the motion, and annexed a copy of a Order Approving Settlement In the Matter of Milan Obradovich. an inca,'2agitated person. through his guardian Lori M. McN~ely v Mie1e, Docket Number 14-01929, filed on March 17, 2016 (NJ Superior Court, Chancery Division, Mercer County) and of a General Release and -2- 2 of 5 \ ,, ese ±-* a [*FILED: NEW YORK COUNTY CLERK 06/30/2017 02:28 PMj 3] •:·. Mf.»NA!4, NYSCEF DOC. NO. 90 INDEX NO. 153364/2013 RECEIVED NYSCEF: 06/30/2017 Settlement Agreement entered into as of December 30, 2015 between plaintiff Milan .Obradovich, an incapacitated person, through his guardian Lori M. McNeely,. Esq. and defendant Lebenthal & Co, LLC. In partial opposition, interpleader-plaintiff Leberithal & Co., LLC opposes the motion only to the extent that any order directing that the funds be turned over by Lebenthal & Co., LLC to the Estate of Milan Obradovich, by Lori M. McNeely, Esq., provide for the deduction of $15,000 from sucH sums as '~ ' .J compensation for the firm of Daniels, Porco, & Lusardi LLP, the . ,.~ attorneys for interpleader plaintiff Lebenthal & Co, LLC, and . . '. administrative expenses as per the foregoing Gener~l Release and . . ,')I '~ Settlement Agreement dated December 30, 2015. ' Interpleader defendant Anne Miele opposes the·motion and argues th~t the restraint should remain on the account on the grounds that interpleader Lebenthal & Co., LLC made improper distributions of funds from the account, for which it has made no accounting. Miele also makes other allegations that after the power of attorney that was issued to her by Obradovich was voided in connection with the New Jersey proceeding that adjudged Obradovich an incapacitated person, and appointed McNeely his guardian, other social security and pension direct ·deposits belonging to Obradovich were misappropriated by unknown persons and other funds of Obradovich wrongfully diverted by an alleged co-guardian. Miele alleges Obradovich died shortly -3- 3 of 5 therea~ter, [*FILED: NEW YORK COUNTY CLERK 06/30/2017 02:28 PM 4] NYSCEF DOC. NO. 90 INDEX NO. 153364/2013 RECEIVED NYSCEF: 06/30/2017 and that the only interest of interpleader defendant ZEHJIKA Stojanovic, his daughter, a beneficiary of the estate, is in obtaining funds therefrom, rather than seeking the proper s~feguard of its assets. In reply, interpleader defendant McNeely argues that this court should afford the Order Approving Settlement of the New Jersey court full faith and credit. Interpleader McNeely also alleges that Miele has not standing with respect tb the account, and that furthermore, it was Miele who misappropriated Obradovich's funds during the time that she was his caretaker, and accepted his power of attorney. This court judicially notices that in the Matter of Miian Obradovich, an incapacitated ge~son, Docket 14-01929, by Order to Show Cause with Temporary Restraints, filed on April 2, 2015, the Superior Court of New Jersey, Chancery Division, Mercer County, issued an order "immediately revoking all powers of attorney, advance directives, medical powers of attorney, litipg wills ... and IRS Forms 2828 authorizing Anne Miele to act as agent[] for Obradovich ... restraining all withdrawals from financial and bank accounts ... by Ann Miele .. with assets formerly belonging to Milan Obradovich ... ordering Ann Miele ... provide a complete and accurate accounting of all financial transactions engaged irt on behalf of Milan Obradovich". As Miele does not contest that the New Jersey court had personal jurisdiction over her, her remedy is before -4- 4 of 5 ) ~T [*FILED: NEW YORK COUNTY CLERK 06/30/2017 02:28 PM 5] NYSCEF DOC. NO. 90 such courts. :. INDEX NO. 153364/2013 RECEIVED NYSCEF: 06/30/2017 ·1 Interpleader Lebenthal was a party as well to such proceeding, and to the extent that Miele contests the determinations of that court and challenges the transactions allegedly made by interpleader plaintiff Lebenthal & Co., Inc., Miele's remedy is in such New Jersey court proceeding. (~Bruno v Bruno, 83 AD3d 165 [l 5 t Dept 2011]). This court finds that the General Release and General Settlement Agreement remained enforceable after the death of Obradovich. (~In re Rhinelanders' Estate, 290 NY 31 [1943]). Moreover, this court concurs with movant that the Order Approving such Settlement Agreement issued by the court of sister state New Jersey is entitled to full faith and credit PY this court. (~ Susi Contracting Co., Jncb v Hartford A9c. & Indemr Co., 213 AD2d 299 [l8t Dept 1995]). Accordingly, it is hereby ORDERED and ADJUDGED that interpleader def e'ndant LORI M. McNEELY'S motion for an order pursuant to CPLR 1006(f) is GRANTED and the movant is directed to settle order on ten days notice. Dated: June 29, 2017 ENTER: -5- 5 of 5 ..) , I

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