Matter of Gruber v Gruber

[*1] Matter of Gruber v Gruber 2021 NY Slip Op 50686(U) Decided on July 1, 2021 Surrogate's Court, Putnam County Mole, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2021
Surrogate's Court, Putnam County

In the Matter of the Application of Janice Gruber, as Administrator of the Estate of Benjamin David Gruber a/k/a Ben Gruber, Deceased, Petitioner,

against

Eric Gruber, Gina Gruber, and 1870 Narragansett, LLC, Respondents.



2018-170



Warren Wynshaw, P.C.

Attn: Warren Wynshaw, Esq.

Attorneys for Petitioner

P.O. Box 3

Fishkill, NY 12524

Farrell Fritz, P.C.

Attn: Robert M. Harper, Esq.

Counsel for Respondents Eric Gruber and 1870 Narragansett, LLC

400 RXR Plaza

Uniondale, NY 11556
Anthony R. Molé, J.

The following papers were read on the motion of respondent ERIC GRUBER (Mot. Seq. 2), made pursuant to CPLR 3211 (a) (4) and (8) for an order dismissing this proceeding and the [*2]underlying petition of JANICE GRUBER, as Administrator of the Estate of BENJAMIN DAVID GRUBER a/k/a BEN GRUBER, Deceased, based on two prior actions pending in Supreme Court, Bronx County and for lack of personal jurisdiction; or alternatively, for an order staying this proceeding pursuant to CPLR 2201:

Papers

Notice of Motion, Affirmation in Support, Exhibits 1-9

Affirmation in Opposition, Exhibits A-D

Affirmation in Reply, Exhibits 10-17

Upon review of the foregoing papers, the Court determines as follows:

Facts

Ben Gruber (hereinafter the decedent) died on March 19, 2018. Decedent was survived by his wife Janice Gruber (hereinafter petitioner) and his son, Eric Gruber (hereinafter respondent).[FN1] Respondent is married to Gina Gruber. In October 2018, letters of administration were issued to petitioner by the Hon. James T. Rooney, Surrogate (retired). Since then, the parties have been embroiled in extensive litigation concerning various real property pertaining to the decedent's estate and several corporations of which the decedent and the parties are/were members of.[FN2]

In April 2019, petitioner, individually and as the Administrator of the decedent's estate, commenced an action in Supreme Court, Bronx County under Index No. 24080/2019E (herein0after the April 2019 action) — against respondent, Gina Gruber, and 1870 Narragansett Ave Corp. (hereinafter 1870 Corp.). The complaint asserts five causes of action, including imposition of a constructive trust, for partition under RPAPL Article 9 of the real property known as 1870 Narragansett Avenue located in Bronx County (hereinafter the subject premises), accounting, dissolution of the corporation under Business Corporation Law § 1104, and a shareholders' derivative claim pursuant to under Business Corporation Law § 626. In the April 2019 action, petitioner claims and seeks a declaration that she, both individually and as the administrator of the decedent's estate, has an equitable interest in the subject premises; and for a declaration that she is entitled to 50% owner of the subject premises: 25% in her individual capacity and 25% as the administrator of the decedent's estate. Respondent, Gina Gruber, and 1870 Corp. interposed an answer with 25 affirmative defenses and two counterclaims: unjust enrichment and a declaratory judgment that the alleged interests of petitioner, decedent, and/or the decedent's estate in 1870 Corp. and 1870 Corp.'s assets, including any real or personal property, are void, unenforceable, or barred for lack of consideration or failure to comply with contractual conditions precedent to the creation of a stock interest in 1870 Corp. and/or an ownership interest in the corporation's assets. The April 2019 action remains pending and is in the discovery stages.

On November 5, 2019, petitioner, individually and as the administrator of the decedent's estate, commenced a second action in Supreme Court, Bronx County under Index No. [*3]33374/2019E — (hereinafter the November 2019 action) — against respondent, Gina Gruber, and 1870 Narragansett, LLC (hereinafter 1870 LLC) asserting four causes of action, including claims that the subject premises was fraudulently conveyed under Debtor and Creditor Law § 276 and to impose a constructive trust on 1870 LLC. In May 2020, respondent, Gina Gruber, and 1870 LLC collectively filed an answer, asserting 25 affirmative defenses in the November 2019 action. Since then, there have been no subsequent filings in the November 2019 action, as is reflected in the New York State Courts Electronic Filing (NYSCEF) system. According to respondent, he is a member of 1870 LLC, which he created with his wife and then transferred the subject premises to 1870 LLC well before he had knowledge that petitioner would claim an interest in the subject premises, either individually or as administrator of the decedent's estate.

Procedural History

On November 12, 2019, petitioner filed an unverified petition thereby commencing this proceeding, which was accompanied by an order to show cause filed the following day.[FN3] The Order to Show Cause, signed by Judge Rooney, directed that it, along with the petition and all papers upon which it is based, was to be served by personal delivery upon respondent and Gina Gruber, pursuant to SCPA 307 (1), by 5:00 p.m. on November 18, 2019.[FN4] The petition and order to show cause, made pursuant to EPTL 11.1-1, 11-3.1, 13-3.6 and SCPA 202, seeks, among other things, a declaration that decedent's interest in the subject premises constitutes a part of decedent's real property that is subject to distribution in intestacy (or for payment of claims), and for an adjudication with respect to any persons claiming an interest in the subject premises.

By letter dated November 22, 2019, respondent's counsel advised the Court that he planned to file a motion to dismiss the petition or, alternatively, to stay the proceeding. Subsequent conferences reflect that the parties agreed to hold this proceeding in abeyance and, at one point, respondent suggested petitioner to withdraw this proceeding without prejudice given the pendency of the prior actions, which petitioner briefly contemplated but declined to do. At a conference on November 20, 2020, Judge Rooney set forth a briefing schedule for respondent's instant motion which was filed November 23, 2020. In December 2020, 1870 LLC filed an answer, asserting 10 affirmative defenses.

Respondent moves pre-answer to dismiss the proceeding as against him on two grounds: pursuant to CPLR 3211 (a) (4) based on the two prior actions pending in Bronx County (collectively referred to as the 2019 Bronx actions), and for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8) for petitioner's alleged failure to effectuate service of process upon him, as was proscribed in the signed Order to Show Cause.

Parties' Contentions

In support of his motion for dismissal, respondent submits, among other things, two affidavits from him, the pleadings from the pending 2019 Bronx actions, the petition and Order to Show Cause associated with this proceeding, portions of the transcript from November 22, [*4]2019 when the Order to Show Cause was made returnable, and a deed of subject property made on March 27, 2019 from respondent and Gina Gruber to 1870 LLC.

Respondent argues that this proceeding ought to be dismissed under CPLR 3211 (a) (4) inasmuch as the 2019 Bronx actions have a substantial identity of the parties, the two actions and this proceeding are sufficiently similar in nature since they are centered on the subject premises, and the relief sought is substantially the same. Respondent presses his argument that these proceeding be dismissed for purposes of judicial economy since it is duplicative and may result in conflicting judgments based on the similar lawsuits and, hence, petitioner should adjudicate those claims by prosecuting the April 2019 and November 2019 actions in Bronx Supreme Court.

Alternatively, respondent asserts that this Court stay this proceeding in the interests of justice pursuant to CPLR 2201 which provides, in relevant part, that "the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just" (CPLR 2201). Petitioner's opposition does not squarely address whether this proceeding should be stayed pending resolution of the 2019 Bronx actions but she devotes a good portion of her opposition that her petition should no longer be held in abeyance and be granted in its entirety.

Petitioner opposes dismissal pursuant to CPLR 3211 (a) (4), contending that the April 2019 action seeks to impress a constructive trust and for a partition of the subject premises, pointing out that a notice of pendency was contemporaneously filed with the complaint in that action. Petitioner asserts that the complaint in the April 2019 action details that she, decedent, respondent, and Gina Gruber are each 25% owners of 1870 Corp., but title of the subject premises was only held by respondent and Gina Gruber. Petitioner avers that the November 2019 action was commenced to set aside conveyance of the subject premises — specifically, that on or about March 27, 2019, respondent and Gina Gruber transferred the subject premises from themselves to 1870 LLC by executing a bargain and sale deed which lacked consideration. According to petitioner, she learned of this conveyance based on documents produced by respondent in October 2019 and, so, the November 2019 action was commenced to place title of the subject premises as it was prior to the conveyance. Based on the foregoing, petitioner maintains that this proceeding is "markedly different" from the April and November 2019 Bronx actions inasmuch as those lawsuits are predicated on different statutes,[FN5] that the ultimate relief [*5]sought here is an adjudication to determine that decedent's ownership interest in the subject premises was 25% which constitutes estate property, and that the subject premises be put back into the estate so that it can be evenly distributed. In essence, petitioner urges this Court issue an order and decree that 25% of decedent's interest in the subject premises should be made part of decedent's estate and that only this Court can award the full relief sought in connection with decedent's estate.

Additionally, petitioner asserts that 1870 LLC is the only necessary party to this proceeding as the nominal owner of the subject premises and it has defaulted in this proceeding since service of process was effectuated upon it. Petitioner posits that neither respondent nor Gina Gruber are necessary parties to this proceeding.

In reply, respondent claims that petitioner misrepresented the relief she seeks in the 2019 Bronx actions vis-à-vis with the relief sought in her petition in this proceeding. Respondent directs attention to the various relief sought in the "wherefore clauses" as set forth in the complaints of the 2019 Bronx actions, which appear to be virtually identical to the relief demanded in the "wherefore clause" of petitioner's petition. Respondent asserts that the factual allegations and legal theories raised in the petition substantially mirror those pled in the complaints of the 2019 Bronx actions.

Further, respondent contends that petitioner's reliance on EPTL 11.1-1 (c), 11.3-1, 13.3-6 and SCPA 202 is misplaced because Supreme Court is a court of general original jurisdiction in law and equity, possessing broad subject matter jurisdiction to grant any of the relief sought in Surrogate's Court; hence, Supreme Court may aptly adjudicate and decide the relief sought in the 2019 Bronx actions. Respondent also asserts in reply that he had no knowledge that petitioner would commence duplicative litigation in different forums and that 1870 LLC did not default in this proceeding because it filed an answer subsequent to his motion to dismiss.[FN6]

Legal Analysis

Preliminarily, the Court rejects petitioner's assertion that respondent is not a necessary party to this proceeding that she commenced against him, Gina Gruber, and 1870 LLC (see CPLR 1001 [a]). In reply, respondent submitted an affidavit sworn to December 21, 2020 wherein he states that he is a member of 1870 LLC, a corporation which he created with his wife, and that he is defending his and the corporation's interests in this proceeding. The crux of [*6]petitioner's relief seeks to curtail the percentage of respondent's interest in the subject premises, thereby directly impacting his ownership rights (see generally Safena v Giuliano, 53 AD3d 650 [2d Dept 2008]). Complete relief cannot be afforded without respondent's participation in this proceeding, and he and Gina Gruber may be inequitably affected by a decree or judgment in this proceeding (compare Town of Brookhaven v Lufker, 266 AD2d 387, 387 [2d Dept 1999], lv denied 94 NY2d 761 [2000]).

Equally unavailing is respondent's contention that 1870 LLC has defaulted in this proceeding. The record reflects that this proceeding was held in abeyance for nearly one year in order for the parties to come to a potential resolution in this matter. Since none was reached, a briefing schedule was established with respect to respondent's motion for dismissal and, subsequently, 1870 LLC interposed an answer asserting 10 affirmative defenses which was served upon petitioner. Hence, it cannot be said that 1870 LLC has per se defaulted in this proceeding since "a party may appear by the service of an answer" (Matter of Katz, 81 AD2d 145, 148 [2d Dept 1981], affd 55 NY2d 904 [1982]; see CPLR 320 [a]; see generally JPMorgan Chase Bank, N.A. v Milgrim, 169 AD3d 1020, 1022-1023 [2d Dept 2019]; Matter of Nieto, 70 AD3d 831, 832 [2d Dept 2010]).

Turning next to the merits of respondent's motion to dismiss, CPLR 3211 (a) (4) provides that a party may move for dismissal of one or more causes of action if "there is another action pending between the same parties for the same cause of action in a court of any state[;]" however, "the court need not dismiss upon this ground but may make such order[s] as justice requires." "[A] court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action. A court may dismiss an action pursuant to CPLR 3211 (a) (4) where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. It is not necessary that the precise legal theories presented in the first action also be presented in the second action. The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs" (Jadron v 10 Leonard St., LLC, 124 AD3d 842, 843 [2d Dept 2015] [internal quotation marks and citations omitted] [emphasis added]; see Pryce v Pryce, 160 AD3d 965, 966 [2d Dept 2018]). In short, dismissal pursuant to CPLR 3211 (a) (4) is appropriate "if the two actions are sufficiently similar . . . and that the relief sought is the same or substantially the same" (Feldman v Harari, 183 AD3d 629 [2d Dept 2020] [internal quotation marks and citations omitted]). Importantly, "[c]ourts enjoy broad discretion when considering whether to dismiss a claim on the ground that another [action] is pending between the same parties dealing with a similar issue" (Mann v Malasky, 41 AD3d 1136, 1137 [3d Dept 2007]; accord Caudill v McGreevy, 299 AD2d 626, 627 [3d Dept 2002]).

Applying those legal principles, the Court agrees with respondent in part and exercises its discretion in granting that branch of respondent's motion which is pursuant to CPLR 3211 (a) (4) to dismiss the petition and underlying proceeding. Indeed, the 2019 Bronx actions and the instant proceeding raise issues duplicative of the subject premises, including decedent's and the parties' ownership interest therein (see Mazzei v Kyriacou, 139 AD3d 823, 824 [2d Dept 2016]). It is clear that the 2019 Bronx actions and this proceeding arise out of the same subject matter or series of alleged wrongs, and apparently seek the same or substantially similar relief (see Matter of Willnus, 101 AD3d 1036, 1037 [2d Dept 2012], lv denied and dismissed 22 NY3d 1060 [2014]; Simonetti v Larson, 44 AD3d 1028, 1028-1029 [2d Dept 2007]).

Initially, there is no doubt that there is a substantial identity of the parties insomuch as [*7]the parties in this proceeding and the 2019 Bronx actions are the same (see Barringer v Zgoda, 91 AD2d 811, 811 [3d Dept 1982] ["(s)ubstantial, not complete, identity of parties is all that is required to invoke [CPLR 3211 (a) (4)]; accord Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 96 [1st Dept 2013]. Even "the presence of additional parties . . . will not necessarily defeat a motion pursuant to CPLR 3211 (a) (4)" (White Light Prods. v On The Scene Prods., 231 AD2d 90, 94 [1st Dept 1997]; see Wells Fargo Bank, N.A. v Pena, 51 Misc 3d 241, 250-251 [Sup Ct, Kings County 2016]). Here, the parties named and involved in the April 2019 action and this proceeding are substantially similar and are, in fact, identical in the November 2019 action.

Secondly, the 2019 Bronx actions, when viewed collectively with this proceeding, arise out of the same events, and involve overlapping issues of fact and law — namely, whether respondent and Gina Gruber fraudulently conveyed the subject premises from themselves to 1870 LLC (see Matter of Willnus, 101 AD3d at 1037). Lastly, the relief sought in the November 2019 action and this proceeding is virtually the same. Reading the wherefore clauses together of the complaint in the November 2019 action and the petition in this proceeding, they are seemingly identical, apart from said complaint separating the relief sought based on the four different causes of action. Contrary to petitioner's contentions that the three lawsuits are entirely different because they proceed "under different theories of relief, other than semantic distinctions" (Simonetti v Larson, 44 AD3d at 1029), there is apparently no difference between the relief requested in this proceeding and the November 2019 action, predicated on the recovery of a portion of the decedent's estate assets for distribution in connection with his ownership in the subject property (see id.). It, therefore, cannot be said that petitioner's allegations in this proceeding "relate to different wrongs, including wrongs of a different nature and wrongs committed at different times, and different [relief being sought]" (Brestin v LaBianca, 144 AD3d 722, 723 [2d Dept 2016]).

Dismissal under CPLR 3211 (a) (4) is also warranted for the additional reason that Supreme Court has subject matter jurisdiction to determine and adjudicate all of the claims asserted in this proceeding. "Subject matter jurisdiction has been defined as the power to adjudge concerning the general question[s] involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under the general question. As a court of original, unlimited and unqualified jurisdiction, the New York State Supreme Court is vested with general original jurisdiction" (21st Century Pharmacy v American Intl. Group, ___, AD3d ___, ___, 2021 NY Slip Op 03820, *2 [2d Dept 2021] [internal quotation marks and citations omitted] [emphasis added]; see NY Const, art VI, § 7 [a]; Judiciary Law § 140-b; Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 338-339 [1993]; see also Top v Glicklich, 68 Misc 3d 1224[A], *3 [Sup Ct, New York County 2020]).

In contrast, "[t]he Surrogate's Court is a court of limited jurisdiction which has the power to entertain matters 'relating to the affairs of decedents'" (Solomon v Solomon, 136 AD2d 697, 698 [2d Dept 1988], quoting NY Const, art VI, §§ 12 [d], [e]; see SCPA 201 [3]; Matter of Stortecky v Mazzone, 85 NY2d 518, 523-524 [1995]). Surrogate's Court is not a court of coordinate jurisdiction to Supreme Court and, as such, this Court would be bound by any orders and decrees adjudicating the parties rights in the 2019 Bronx actions with respect to the decedent's interest in the subject premises and distribution of that real property as part of decedent's estate. Moreover, no party will suffer undue detriment or gain undue advantage by having the 2019 Bronx actions adjudicated (see F.M.C. Constr., LLC v Heartland Dev. Corp., 12 [*8]Misc 3d 1165[A], *2 [Sup Ct, Richmond County 2006]). In short, petitioner cannot seek the same relief in different forums that is asserted in analogous filings simply to gain a tactical advantage.

In light of dismissal being granted under CPLR 3211 (a) (4), the Court need not reach respondent's contention that the Court lacks personal jurisdiction upon him. Therefore, the parties' arguments in regard to the issue of service and CPLR 3211 (a) (8) have been rendered academic.

Petitioner's Ex Parte Application Made June 2021

As a final matter, the Court is compelled to address a separate, but related, issue that is not the subject of respondent's motion to dismiss: an apparent written application filed by petitioner on June 16, 2021 titled "Ex Parte Application to Authorize Administrator to Proceed with Partition Actions, nunc pro tunc."[FN7] For whatever reason, petitioner did not duly notice respondent or any other interested party of such application. Notwithstanding, this Court does not condone ex parte applications to be made in any proceeding, especially here given the extensive litigation involving the decedent's estate in different counties between these parties.

In her application, petitioner, pursuant to RPAPL 901 (4) and SCPA 1901 (2) (i),[FN8] seeks an order authorizing her, nunc pro tunc, for permission to commence and maintain the actions for partition concerning: (1) certain real property in this County (namely, the property known as 436 Route 6 in the Hamlet of Mahopac [hereinafter referred to as the Mahopac property]) as it relates to a pending action in Supreme Court, Putnam County under Index No. 500507/2019 before the Hon. Gina C. Capone, J.S.C. (hereinafter the Putnam action); and (2) the subject premises as it relates to the April 2019 and November 2019 Bronx actions. Notably, petitioner's ex parte application is riddled with allegations against respondent, including that he engaged in suspicious conduct prior to the decedent's death and withheld information about real properties he had allegedly concealed in Putnam County and Bronx County, in reference to the Mahopac property and the subject premises. According to petitioner, respondent purchased the Mahopac property in December 2013 and it was allegedly supposed to be transferred from respondent to Gruber Realty, LLC (formed January 2004) of which respondent and the decedent were the sole members. Petitioner avers that the deed and transfer documents were prepared but the deed was never recorded, and that decedent and respondent treated the Mahopac property as if it was owned by Gruber Realty, LLC. Included with petitioner's ex parte application is a proposed order seeking the Court's approval in authorizing her to maintain the partition actions, nunc pro tunc.

"RPAPL 901 limits the persons who may maintain an action for partition to those specifically enumerated in the statute" (Korn v Korn, 135 AD3d 1023, 1024 [3d Dept 2016]). More specifically, RPAPL 904 (a) states, in relevant part, that if "the estate of a decedent is the owner of an estate in common in real property, the . . . administrator may bring a partition action [*9]. . . on behalf of the estate if, upon application duly made, the [S]urrogate approves." For example, the administrator of "an estate that has joint ownership of real property can also bring an action for partition, provided that approval to do so is obtained from Surrogate's Court" (Korn v Korn, 135 AD3d at 1024; see RPAPL 901 [4]; SCPA 1901 [2] [i]; see also Morris v Adams, 82 AD3d 946, 946 [2d Dept 2011], lv denied 17 NY3d 715 [2011]).

SCPA 1901 (1) states that "[t]he court may authorize or direct the disposition of a decedent's real property or any interest therein for any of the purposes set forth [SCPA 1901 (2)]" and "[t]he court may entertain an application for disposition . . . even if the proposed disposition is or appears to be authorized by the will or by a statute." SCPA 1901 (2) (i) provides, in pertinent part, that if "the estate of a decedent is the owner of an estate in common in real property, the executor or administrator may bring a partition action . . . in a pending partition action on behalf of the estate, if, upon application duly made, the [S]urrogate approves."

Here, the Putnam action is centered around the Mahopac property, which petitioner commenced in April 2019 solely in her capacity as the administrator of decedent's estate, naming respondent as the sole defendant, and asserting three causes of action against him: (1) impressing a constructive trust, (2) for partition under RPAPL Article 9 of the Mahopac property, and (3) accounting. In his answer in the Putnam action, respondent asserts as his third affirmative defense that petitioner's claims are barred for "failure to comply with statutory conditions precedent to suit, including, without limitation, under RPAPL 901 and/or SCPA 1901."[FN9] Meanwhile, the April and November 2019 actions pertain to the subject premises located in the Bronx. The Court notes that in the answer collectively filed with 1870 Corp. and Gina Gruber in the April 2019 action, respondent asserts this very same affirmative defensive relative to petitioner's cause of action for a partition under RPAPL Article 9 of the subject premises. In short, the undersigned, as the Surrogate having jurisdiction of the estate, is authorized to approve the partition actions by petitioner in her capacity as administrator of the decedent's estate, and such can be done by nunc pro tunc approval (see Morris v Adams, 82 AD3d at 946; Vick v Albert, 17 AD3d 255, 258 [1st Dept 2005]; Matter of Estate of Lewis, 21 Misc 3d 1147[A], *1 [Sur Ct, Bronx County 2008]; see also RPAPL 904 [a]; SCPA 1901 [2] [i]; see generally Hor v Hor, 32 Misc 3d 1211[A], *2 [Sup Ct, Queens County 2011]).

Irrespective of the foregoing, petitioner is cautioned and further precluded from making any ex parte applications to this Court in the future. All applications concerning decedent's estate and related proceedings shall be on notice to the parties.

The Court has considered the additional contention of the parties not specifically addressed herein. To the extent any relief requested by the parties was not specifically addressed herein, it is denied. Accordingly, it is hereby:

ORDERED that that branch of the motion of respondent ERIC GRUBER (Mot. Seq. 2), made pursuant to CPLR 3211 (a) (4), for an order dismissing this proceeding based on the two [*10]prior actions pending in Supreme Court, Bronx County, is granted; and it is further

ORDERED that the remaining branches of the motion of respondent ERIC GRUBER (Mot. Seq. 2), made pursuant to CPLR 2201 and 3211 (a) (8), are denied; and it is further

ORDERED that the underlying petition of JANICE GRUBER, as Administrator of the Estate of BENJAMIN DAVID GRUBER a/k/a BEN GRUBER, Deceased, dated November 10, 2019 and filed on November 12, 2019, is dismissed in its entirety against all respondent-parties; and it is further

ORDERED that the Order to Show Cause signed November 13, 2019 (Mot. Seq. 1), is denied and dismissed in its entirety against all respondent-parties; and it is further

ORDERED that within twenty (20) days from the date of this decision, petitioner JANICE GRUBER, as Administrator of the Estate of BENJAMIN DAVID GRUBER a/k/a BEN GRUBER, Deceased, shall serve and re-file her application, and all papers upon which it is based including the proposed order, seeking leave to authorize her as the administrator to proceed with the partition actions, nunc pro tunc, on notice to the parties; and petitioner shall file proof of such service with the court forthwith; and it is further

ORDERED that within twenty (20) days from the date of this decision, respondent ERIC GRUBER shall cause a copy of this decision and order to be served upon petitioner JANICE GRUBER, as Administrator of the Estate of BENJAMIN DAVID GRUBER a/k/a BEN GRUBER, Deceased; and respondent ERIC GRUBER shall file proof of such service with the court.

The foregoing constitutes the decision and order of this Court.

Dated: July 1, 2021

Carmel, New York

E N T E R:

Hon. Anthony R. Molé, Surrogate Footnotes

Footnote 1:Petitioner and respondent are mother and son, respectively.

Footnote 2:The Court notes that there is a separate proceeding that was commenced by petitioner against another nonparty in this proceeding and respondent, which is made pursuant to SCPA 2103 to discover property allegedly withheld or belonging to decedent. That proceeding is still in discovery.

Footnote 3:Judge Rooney signed the Order to Show Cause on November 13, 2019.

Footnote 4:Gina Gruber has yet to formally appear in this proceeding. Of note, the motion papers reveal that she was not served with the Order to Show Cause and petition, despite the former directing personal delivery upon her pursuant to SCPA 307 (1). Service was to be effectuated upon 1870 LLC in accordance with CPLR 311-a ("personal service on limited liability companies").

Footnote 5:As part of her petition and in contesting dismissal, petitioner points to, among others, the following statues that she commenced this proceeding under: EPTL 11.1-1 (c) which states that "[t]he court having jurisdiction of the estate . . . may authorize the fiduciary to exercise any other power which in the judgment of the court is necessary for the proper administration of the estate"; EPTL 11.3-1 which provides that "[a]ny action, other than an action for injury to person or property, may be maintained by and against a personal representative in all cases and in such manner as such action might have been maintained by or against his [or her] decedent"; EPTL 13.3-6 which states in relevant part that "[a] fiduciary may, for the benefit of creditors or others interested in property held in trust, treat as void any act done, or disposition or agreement made in fraud of the rights of any creditor, including himself [or herself], interested in such property, and a person who fraudulently receives, takes or in any manner interferes with the property of a deceased or insolvent person is liable to such fiduciary or a receiver for such property or the value thereof, and for all damages caused by such act to the trust estate"; and SCPA 202 which provides in pertinent part that "the court is empowered in any proceeding, whether or not specifically provided for, to exercise any of the jurisdiction granted to it by this act or other provisions of law, notwithstanding that the jurisdiction sought to be exercised in the proceeding is or may be exercised in or incidental to a different proceeding"; and Debtor and Creditor Law §§ 276, 279, and 280 to compel the named respondents to execute and deliver a deed concerning the subject premises to the estate based on the 25% that was purportedly owned by the decedent.

Footnote 6:Respondent has apparently retained the same counsel to defend him and 1870 LLC in this proceeding. The Court further notes that the same counsel in this proceeding are defending respondent, Gina Gruber, and 1870 LLC in the April 2019 and November 2019 actions commenced by petitioner in Bronx County. Likewise, petitioner has retained the same counsel to assist her in commencing this proceeding, as are representing her in her individual capacity and as administrator of the decedent's estate in the 2019 Bronx actions.

Footnote 7:Petitioner attaches voluminous exhibits to her ex parte application.

Footnote 8:Petitioner incorrectly cites SCPA 1901 (2) (a) in support of her application. At the same time, while relying on RPAPL 901 (4) and SCPA 1901 (2) (i) in support of her application, petitioner states that she does not believe that those statutes are "immediately applicable . . . on [their] face" because decedent's estate is a member of Gruber Realty, LLC and that decedent's estate is not the owner of an estate in common in real property.

Footnote 9:The NYSCEF docket reflects that petitioner's action in Putnam Supreme Court remains pending and, in April 2021, respondent moved for summary judgment dismissing the complaint in its entirety with prejudice. Respondent's motion has yet to be fully briefed and, on June 28, 2021, the parties filed a stipulation consenting to adjourn the return date of the motion until September 2021.