Matter of Spiro

[*1] Matter of Spiro 2021 NY Slip Op 51104(U) Decided on November 17, 2021 Surrogate's Court, Albany County Pettit, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2021
Surrogate's Court, Albany County

In the Matter of the Proceeding Pursuant to SCPA 2102 for Relief Against a Fiduciary for the Estate of Joel M. Spiro, Deceased. KIRA SPIRO, Petitioner, SCOTT A. SPIRO, Individually and as Trustee of Joel M. Spiro Revocable Trust, as Trustee of the Qualified Personal Residence Trust One, as Trustee of the Qualified Personal Residence Trust Two, and as Preliminary Executor of the Estate of JOEL M. SPIRO, Deceased, KEVIN MCCOY, Individually and as Trustee of the Joel M. Spiro Revocable Trust and as Trustee of the Joel M. Spiro Irrevocable Trust F/B/O Jason Spiro and JASON SPIRO, Individually and as Trustee of the Joel M. Spiro Revocable Trust., Respondents.



File No. 2021-545/C



Paul DerOhannesian II, Attorney for Petitioner, DerOhannesian and DerOhannesian, Albany

Lucy Kats, Attorney for Respondents, Whiteman Osterman and Hanna LLP, Albany
Stacy L. Pettit, J.

Decedent Joel M. Spiro died testate on April 27, 2021 in Albany County, where he resided with petitioner Kira Spiro, his spouse of 10 years, at 16 Devonshire Drive, Town of [*2]Bethlehem ("the residence") and where petitioner continues to reside. Decedent is survived by petitioner and his two sons, respondents Scott Spiro and Jason Spiro.

On May 5, 2021, Scott Spiro filed a petition for probate of decedent's will dated January 18, 2013. The Court issued preliminary letters to Scott Spiro on May 12, 2021. Thereafter, Scott Spiro, in his capacity as preliminary executor of decedent's estate, filed a proposed order to show cause with temporary restraining orders and a petition pursuant to SCPA 2103 for an order compelling petitioner to attend an inquiry, to deliver property and to compensate the estate. The Court issued the order to show cause, as revised to remove certain portions of the proposed order which included the proposed eviction of petitioner from the residence.

Petitioner filed a claim against the estate on June 14, 2021 in the amount of $1.5 million and opposition to the preliminary executor's request for injunctive relief. The Court so ordered two stipulations on June 15, 2021 and July 27, 2021 regarding the turnover and preservation of decedent's electronic devices, access to decedent's financial assets including, among other things, joint accounts held in decedent's and petitioner's names, and access to the residence by third parties for the purposes of inspection, inventory and making repairs, thereby resolving the preliminary executor's request for a preliminary injunction.

On July 9, 2021, petitioner commenced this proceeding pursuant to SCPA 2102 by filing a petition for declaratory judgment, specific performance, promissory estoppel and injunctive relief seeking to enforce an option to purchase the residence for $300,000 pursuant to changes made to amendments to a prenuptial agreement between petitioner and decedent. She also sought by order to show cause temporary injunctive relief restraining the preliminary executor from, among other things, interfering with her quiet enjoyment of the residence. Petitioner named as respondents to this proceeding Scott Spiro, individually and as preliminary executor and trustee of the Joel M. Spiro Revocable Trust ("Revocable Trust"), the Qualified Personal Residence Trust One ("QPRT1") and the Qualified Personal Residence Trust Two ("QPRT2"), Kevin McCoy, individually and as co-trustee of the Revocable Trust and the Joel M. Spiro Irrevocable Trust for the benefit of Jason Spiro, and Jason Spiro, individually and as co-trustee of the Revocable Trust (collectively, "respondents"). On that same day, the Court signed petitioner's order to show cause granting her requests for temporary injunctive relief with respect to the residence.

On August 3, 2021, respondents filed their answer to the petition, a motion seeking a preliminary injunction and a motion to vacate the temporary restraining order ("TRO") issued by the Court on July 9, 2021. In their answer respondents assert, among several other affirmative defenses, that the Court lacks jurisdiction over certain unnamed necessary parties to the proceeding, namely, Sarah Spiro, daughter of Scott Spiro, and the unborn descendants of Jason Spiro. Respondents also seek preliminary injunctive relief (1) authorizing Scott Spiro, upon 48-hour notice to petitioner to vacate, to enter the residence once per week for a period of two hours to conduct inventory/appraisal, remove decedent's assets and protect or repair the home as needed; (2) ordering petitioner, upon 48-hour notice to her, to allow appraisers, contractors, inspectors, and movers sent by Scott Spiro to enter the residence; (3) authorizing Scott Spiro to change the lock on decedent's wine cellar and ordering Scott Spiro to surrender to petitioner the key to the wine cellar following removal of the wine collection; (4) ordering petitioner to provide the preliminary executor with a list of her tangible property; and (5) authorizing Jason Spiro to enter the residence during two of Scott Spiro's weekly visits to identify and remove Jason Spiro's personal property except for items that Jason and petitioner claim common [*3]ownership which will remain in the residence until ownership is agreed upon by the parties or determined by the court. Petitioner opposes respondents' motions, and the motions have been submitted for decision.

As an initial matter, the Court addresses respondents' assertion that it lacks jurisdiction because the petition does not name Sarah Spiro and the unborn descendants of Jason Spiro, who are necessary parties to this proceeding. After the filing of respondents' answering papers, Sarah Spiro appeared in this proceeding by counsel. Respondents now suggest that Sarah Spiro may virtually represent the unborn descendants of Scott Spiro; however, she is unable to represent the unborn descendants of Jason Spiro, whose interests differ from her own. With respect to the use of virtual representation, respondents have not complied with SCPA 315 and 22 NYCRR 207.18.

"'[T]he absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion'" (Matter of Hudson Riv. Sloop Clearwater, Inc. v Town Bd. of the Town of Coeymans, 144 AD3d 1274, 1275 [3d Dept 2016], quoting Bayview Loan Servicing, LLC v Sulyman, 130 AD3d 1197, 1198 [3d Dept 2015]). Here, Scott Spiro and Jason Spiro's unborn descendants are necessary parties to this proceeding because they are remainder beneficiaries pursuant to the terms of decedent's trusts and are therefore "persons interested in the estate" (SCPA 315). On December 20, 2012, decedent executed two qualified personal residence trusts ("QPRT1" and "QPRT2" and collectively, "the trusts"). Each trust was allocated a 50% interest in the residence and decedent, as grantor, retained the option to rent the residence. Both trusts provided that if the term of the trusts expired upon decedent's death, then the trust property will be distributed to decedent's Revocable Trust dated December 7, 2012,[FN1] but if the term of the trusts expired during decedent's lifetime, then the trust property will be distributed to Scott Spiro as trustee of descendants' separate trusts under QPRT1 and QPRT2.[FN2] QPRT1 expired in January 2021, prior to decedent's death, and 50% of the interest in the residence was distributed to Scott Spiro as trustee under the terms of QPRT1. QPRT2 expired upon decedent's death and, accordingly, the remaining 50% interest in the residence was distributed to decedent's Revocable Trust where it was divided equally between trusts for Scott and Jason Spiro. QPRT1 further provides that upon respondent Scott Spiro's death, the remainder of QPRT1 is to be distributed in accordance with his general power of appointment or, in lieu thereof, to his descendants. Pursuant to the terms of the Revocable Trust, upon the death of respondent Scott Spiro, his equal share in the remaining 50% interest in the residence is to be distributed to his spouse and descendants, here Sarah Spiro, on such terms as he shall appoint, otherwise to his descendants or, if none, then to decedent's descendants. Upon the death of Jason Spiro, the remainder of his equal share in the remaining 50% interest in the residence is to be distributed to his descendants yet unborn or, if none, then to decedent's descendants.

SCPA 315 (2) (a) (iii) provides that it shall not be necessary to serve process on any "unborn or unascertained persons . . . [unless] . . . it appears that there is no person in being or [*4]ascertained, having the same interest, [then] the court shall appoint a guardian ad litem to represent or protect the persons who eventually may become entitled to the interest." If virtual representation is to occur in a proceeding, it must be determined as a threshold issue at the outset of the proceeding, or jurisdiction is not obtained by that method (see SCPA 315 [7]). "In any proceeding where the petitioner wants to use virtual representation for some parties, the petition must give information justifying it" (Turano & Radigan, New York Estate Administration § 2.11 [g] [2020 ed]; see SCPA 315 [7]). The petition before the Court does not include any of the information required pursuant to SCPA 315 and 22 NYCRR 207.18; accordingly, a supplemental citation will be needed and guardians ad litem will be appointed to represent the interests of each of the sons' unborn descendants, unless respondents submit information sufficient to permit Sarah Spiro to virtually represent the unborn descendants of Scott Spiro, in which case only one guardian ad litem will be appointed for the unborn descendants of Jason Spiro.

Regarding the merits of respondents' motion for injunctive relief, it is well settled that "[a] preliminary injunction constitutes 'drastic relief'" (Rural Community Coalition, Inc. v Village of Bloomingburg, 118 AD3d 1092, 1095 [3d Dept 2014], quoting Troy Sand & Gravel Co., Inc. v Town of Nassau, 101 AD3d 1505, 1509 [3d Dept 2012]) and "'should be issued cautiously'" (id., quoting Uniformed Firefighters Assn. of Greater NY v City of New York, 79 NY2d 236, 241 [1992]). "[W]hile ordinarily a decision within the trial court's discretion, nonetheless the party seeking [a preliminary injunction] 'must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor'" (id., quoting Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see Doe v Axelrod, 73 NY2d 748, 750 [1988]; Sardino v Scholet Family Trust, 192 AD3d 1433, 1434 [3d Dept 2021]; see also Apple A.C. & Appliance Serv., Inc. v Apple Home Heating Corp., 164 AD3d 460, 461 [2d Dept 2018]). Movant must show "a sufficiently clear right to [the] equitable relief" sought (Chrys v D.C.G. Dev. Co., 187 AD2d 923, 924 [3d Dept 1992]; see Rick J. Jarvis Assoc. v Stotler, 216 AD2d 649, 650 [3d Dept 1995]; see also Saran v Chelsea GCA Realty Partnership, L.P., 148 AD3d 1197, 1199 [2d Dept 2017]).

"A court evaluating a motion for a preliminary injunction must be mindful that '[t]he purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties'" (Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942, 942 [2d Dept 2009], quoting Matter of Wheaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051, 1052 [2d Dept 2009]; accord Keller v Kay, 170 AD3d 978, 981 [2d Dept 2019]; see Rural Community Coalition, Inc. v Village of Bloomingburg, 118 AD3d at 1095). To that end, "the court's discretion pervades the application of the foregoing three-part requirement [and] courts sometimes compensate for one of the elements by stressing the strengths of the others" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 6301).

Decedent and petitioner entered into a prenuptial agreement on June 14, 2011 and were married that same month. Petitioner seeks in her underlying petition an order from the Court enforcing changes made on March 3, 2021 to an agreement between petitioner and decedent amending the prenuptial agreement which she claims entitled her to exercise an option to purchase the residence for $300,000 within 120 days of decedent's death. Petitioner's success on [*5]the underlying petition will ultimately depend on the validity of the March 3, 2021 changes.[FN3] She contends that the changes are valid, that Scott Spiro ratified the changes and that he is barred by promissory estoppel from repudiating the changes. In addition to moving for injunctive relief, respondents argue in opposition to the petition, among other things, that the March 3, 2021 changes are barred by the statute of frauds because decedent did not have legal authority to agree to the changes, and that the changes are unenforceable in any event because they were not properly acknowledged in accordance with the formalities for modifications to the prenuptial agreement.

The original prenuptial agreement does not include an option for petitioner to purchase the residence, but rather provides that during the marriage and upon the occurrence of an "Operative Event" whereby either party sends written notification to the other of his or her intention to terminate the marriage or commences an action for divorce, annulment, separation or support more than 120 months from the date of their marriage, then petitioner would receive a lump sum payment of $900,000.00 plus $15,000.00 "for each full month of marriage beyond [120] full months of marriage, but not to exceed the total sum of . . . ($1,500,000.00)." Related to the residence, the prenuptial agreement provides, that "any residence . . . owned or leased in [decedent's] sole name, or any entity for [decedent's] benefit (e.g. a trust, limited liability company) is and shall remain his Separate Property [and petitioner] shall have sixty (60) days after the occurrence of an Operative Event to vacate the residences and to remove her personal belongings." The parties agreed with respect to their estate rights that any last will executed by either of them is to be "fully binding upon the other party," and they waived any "rights of surviving spouses to elect to take in contravention of the terms of any last will of the other." The parties further agreed that in the event of decedent's death,

"[and] so long as an Operative Event [does] not occur[] prior to his death . . . [petitioner] shall receive, as the result of [decedent's] death, property having a value of not less than . . . 150% . . . of that which she would have received had an Operative Event occurred on the day before [decedent's] death or property having a value of . . . ($100,000.00) whichever is greater. The transfers to [petitioner] as the result of [decedent's] death so as to satisfy the forgoing sentence may take any form(s), including but not limited to, [petitioner's] being a surviving joint tenant, a beneficiary on an insurance policy, retirement plan or financial instrument, or from [decedent's] estate."

On December 14, 2020, petitioner and decedent executed an agreement amending their prenuptial agreement ("amended agreement") wherein they acknowledged their mutual relinquishment of rights in each other's estates and agreed that, in exchange for petitioner's consent to gift splitting on decedent's 2020 gift tax return, petitioner will receive "an additional sum of $2,500,000.00 over and above the $1,500,000 . . . provided for in the Prenup for a total of $4,000,000." The parties further agreed that petitioner would have the option to purchase the residence for its "Appraised Value" at the time of decedent's death. In turn, petitioner and Scott Spiro, as trustee, executed an Option to Purchase Real Property ("option contract") dated [*6]December 19, 2020 granting to petitioner "an exclusive and irrevocable option to purchase" the residence for its appraised value with the closing of title to occur within 120 days after decedent's death.

Petitioner now contends that the March 3, 2021 changes made to the amended agreement, as evidenced by a copy of the scored document that is included with petitioner's supporting papers, permitting her to purchase the residence for $300,000 instead of its appraised value should be enforced. By letter dated May 18, 2021, respondent Scott Spiro's counsel rejected petitioner's written notice of her intention to exercise the option to purchase the residence for the sum of $300,000 as invalid and countered that their option contract governs the dispute which provides for purchase of the residence at its appraised fair market value.

The Court finds respondents have not established that, absent the requested injunctive relief, the estate will be irreparably harmed or that the harm to the estate will be greater than the harm to the petitioner, and that a question of fact exists whether respondent Scott Spiro ratified the March 3, 2021 changes to the amended agreement. The Court therefore concludes, in the exercise of its discretion, that preservation of the status quo is paramount pending a final determination of the parties' respective rights to the residence and that respondents' request for injunctive relief must be denied.

General Obligations Law § 5-701 is New York's general statute of frauds provision (see Korman v Corbett, 183 AD3d 608, 610 [2d Dept 2020]). General Obligations Law § 5-703 is its "more specific statute of frauds provision relating to contracts concerning real property" (id.; see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]). General Obligations Law § 5-703 (2) provides that "[a] contract for . . . the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his [or her] lawful agent thereunto authorized by writing" (see also Bent v St. John's Univ., NY, 189 AD3d 973, 974 [2d Dept 2020] [a contractual relationship requires at least one document signed by the party to be charged]). An option agreement to purchase real property is "'a contract to devise real property . . . or any interest therein or right with reference thereto' . . . and therefore, [is] governed by General Obligations Law § 5-703" (Korman v Corbett, 183 AD3d at 610, quoting General Obligations Law § 5-703 [3]; see Kaplan v Lippman, 75 NY2d 320, 325 [1990] [option to purchase interest in real property is conditional contract for future conveyance of land and is within statute of frauds and must be in writing]; Solartech Renewables, LLC v Vitti, 156 AD3d 995, 998 [3d Dept 2017]). General Obligations Law § 5-1103 further provides that "[a]n agreement . . . to change or modify . . . any contract . . . shall not be invalid because of the absence of consideration, provided that the agreement . . . changing, modifying or discharging such contract . . . shall be in writing and signed by the party against whom it is sought to enforce the change, modification or discharge, or by his agent."

Decedent, having previously conveyed all of his "interests and rights" in the residence to trustee Scott Spiro, was without authority on March 3, 2021 to alter petitioner's option to purchase the residence, changing a material term of the conditional contract for future conveyance of the residence and potentially diminishing the value of an irrevocable trust asset (see Solartech Renewables, LLC v Vitti, 156 AD3d at 998, quoting Kaplan v Lippman, 75 NY2d at 325). Nor is there any proof before the Court that decedent was authorized to execute the March 3, 2021 changes on behalf of trustee Scott Spiro (see Titte v Butler, 143 AD3d 808, 810 [2d Dept 2016] [execution by defendant's brother did not satisfy requirements of General [*7]Obligations Law § 5-703 (2) for contract for interest in real property to be in writing, subscribed by party to be charged or by her lawful agent where there was no writing authorizing defendant's brother to sign on defendant's behalf]).[FN4] Thus, the March 3, 2021 changes violate the statute of frauds because they were not signed by trustee Scott Spiro, the party to be charged at the time of the changes.

Even if decedent had the legal authority to enter into the March 3, 2021 changes, they would nonetheless be unenforceable since the formalities for modifications to the prenuptial agreement and modifications to the option contract were not followed. The parties' prenuptial agreement provides that modifications must occur

"by agreement in writing duly subscribed and acknowledged with the same formality as this Agreement and in the case of [decedent], said writing must occur in the office of an attorney whom [decedent] has known for at least five years, where [decedent's] son Scott, and his friend Arthur Thorn are present and no one else other than the lawyer and members of his staff. If Scott and/or Arthur Thorn are not available any of the following people may be present in their place: [decedent's] son Jason or [decedent's] friend Joel Hodes. If no two of the preceding people are available then any licensed physician (practicing or retired) who is know to [decedent] may substitute."

"It is well settled that written contracts should be enforced according to their terms" (Del Gallo Country Pools, Inc. v Kulbako, 173 AD3d 1399, 1400 [3d Dept 2019]). It is clear to the Court following a review of the amended agreement with the March 3, 2021 changes that the modifications were not "duly subscribed and acknowledged with the same formality" as the parties' prenuptial agreement. The parties' signatures to the prenuptial agreement were acknowledged before notaries. The March 3, 2021 changes were merely initialed and dated by the parties. Nor is there any proof before the Court that the March 3, 2021 changes were made at the location or witnessed by any of the individuals designated in the prenuptial agreement. And the parties' option contract provides that it "may not be amended, except in writing, and must be signed by [Scott Spiro and Kira Spiro]" (see Sparks Assoc., LLC v North Hills Holding Co. II, LLC, 94 AD3d 864, 866 [2d Dept 2012]). Thus, respondents have established their likelihood of ultimate success on the merits of this petition to the extent that the March 3, 2021 changes are unenforceable pursuant to the statute of frauds, the terms of their prenuptial agreement and the terms of their option contract.

The Court further finds, however, that although petitioner has not established an exception to the statute of frauds through the doctrine of promissory estoppel, an issue of fact exists whether respondent Scott Spiro ratified the March 3, 2021 changes. It is well settled that "[d]etrimental reliance is an indispensable element of a promissory estoppel claim" (Schroeder v [*8]Pinterest Inc., 133 AD3d 12, 32 [1st Dept 2015]). "[T]he Appellate Division departments have unanimously recognized that promissory estoppel may preclude enforcement of the statute of frauds if application of the statute would result in unconscionability" (Matter of Hennel, 29 NY3d 487, 493-494 [2017]). "The standard for unconscionability . . . must be equally demanding" for both "the party seeking to avoid the statute of frauds" and the party seeking to enforce it (id. at 495). "'The strongly held public policy reflected in New York's Statute of Frauds would be severely undermined if a party could be estopped from asserting it every time a court found that some unfairness would otherwise result'" (id., quoting Philo Smith & Co., Inc. v USLIFE Corp., 554 F2d 34, 36 [2d Cir 1977]).

Here, the March 3, 2021 changes to the amended agreement are barred by the statute of frauds insofar as the changes were not signed by trustee Scott Spiro, "the party to be charged" (General Obligations Law § 5-703 [2]). Petitioner nonetheless claims in her petition to have relied to her detriment upon decedent's promise to sell the residence to her for $300,000 when she refrained from seeking other housing options following the March 3, 2021 changes. Petitioner first learned that her option to purchase the residence for $300,000 was rejected on May 18, 2021, approximately 10 weeks after the March 3, 2021 changes. Her actions in refraining from seeking other living arrangements for a period of only 10 weeks in reliance upon the $300,000 purchase price while continuing to occupy the residence is not "so great that enforcement of the statute of frauds would be unconscionable" (id. at 494). Petitioner was not rendered homeless by the rejection of her option to purchase the residence for $300,000 as she has continuously resided there, nor is she unable to purchase the residence altogether having signed an option to purchase the residence for its appraised value. Petitioner has not alleged that any carrying costs of the residence have fallen into arrears following rejection of the exercise of her option to purchase the residence or that her projected financial circumstances are such that she will be unable to purchase the residence for its appraised value.

Petitioner also contends that respondents ratified the March 3, 2021 changes to the amended agreement. "'[A]n unauthorized execution of an instrument affecting the title to land or an interest therein may be ratified by the owner of the land or interest so as to be binding upon him [or her]'" (Provident Bay Rd., LLC v NYSARC, Inc., 117 AD3d 1356, 1358 [3d Dept 2014], quoting Diocese of Buffalo v McCarthy, 91 AD2d 213, 219 [1983], lv denied 59 NY2d 605 [1983]). "Such a ratification may be shown by the owner's failure to timely repudiate the unauthorized actions, or by conduct consistent with an intent to be bound" (id.).

There is no proof before the Court to establish that respondent Scott Spiro's repudiation of the March 3, 2021 changes was untimely. He rejected petitioner's attempt to exercise her option to purchase the residence for $300,000 by letter from his counsel dated May 18, 2021, only 10 weeks after the March 3, 2021 changes were made. However, petitioner has offered proof in opposition to respondents' motion which suggests that acts probative of ratification by respondent Scott Spiro may have occurred. Petitioner offers an email communication from respondent Kevin McCoy, decedent's long-time accountant, sent on March 3, 2021 and prior to the parties' execution of the changes that same day. The email was sent to decedent and petitioner and in it McCoy states that he confirmed the $300,000 purchase price with respondent Scott Spiro. Further, petitioner attests that respondent Scott Spiro confirmed the purchase price of $300,000 with her on January 25, 2021, well in advance of the changes. The foregoing offer of proof warrants, at a minimum, further exploration at trial of the alleged circumstances surrounding respondent Scott Spiro's possible ratification of the March 3, 2021 changes where [*9]the parties' credibility may also be considered.

A motion for preliminary injunction must also include a showing of "the danger of irreparable injury" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d at 840; see CPLR 6301; Kaloyeros v Fort Schuyler Mgt. Corp., 55 Misc 3d 1082, 1089-90 [Sup Ct, Albany County 2017], affd 157 AD3d 1152 [3d Dept 2018]). Irreparable harm is "any injury for which an eventual monetary award alone cannot be adequate compensation" (Kaloyeros v Fort Schuyler Mgt. Corp., 55 Misc 3d at 1089-90; see Town of Liberty Volunteer Ambulance Corp. v Catskill Regional Med. Ctr., 30 AD3d 739, 740 [3d Dept 2006]. The party seeking a preliminary injunction must demonstrate that the alleged irreparable harm is "imminent and likely to occur absent a preliminary injunction" (Kaloyeros v Fort Schuyler Mgt. Corp., 55 Misc 3d at 1090; see Golden v Steam Heat, 216 AD2d 440, 442 [2d Dept 1995]).

Respondents contend that they will suffer irreparable harm absent the preliminary injunction because the current situation constitutes an interference with their real property rights as legal owners of the residence and is preventing respondent Scott Spiro from performing his duties as preliminary executor. The Court concludes that respondents have not offered sufficient proof to establish the imminence of any harm either to their rights as property owners or to the preliminary executor in carrying out his responsibilities.

Respondents seek injunctive relief, in significant part, to conduct an inventory of assets and to remove assets from the residence, including the contents of decedent's wine collection, for safekeeping. The relief requested is addressed in large part by the parties' two existing stipulations and orders containing various injunctive provisions designed to protect estate assets and preserve petitioner's living situation pending a determination of the merits of the petitions. For instance, the parties' July stipulation and order, which was entered into only one week before the instant application, prohibits petitioner from doing anything that would have a deleterious effect on the value of any assets from the residence belonging exclusively to decedent, Scott Spiro or Jason Spiro and to return any such assets to the residence if they had been removed. To the extent that respondents seek injunctive relief ordering petitioner to allow respondents Scott Spiro and Jason Spiro or other third parties to enter the residence for the purpose of conducting inventory, appraisals and repairs, the parties' July stipulation and order also includes directives that the parties cooperate to allow third parties to enter the residence for those purposes. Moreover, Scott Spiro's presence in the residence is not required for him to carry out his responsibilities as preliminary executor to take inventory and determine the value of all items and assets that may be kept there. Nor have respondents presented sufficient proof to show that estate assets have been compromised or are in jeopardy and that the current stipulations and orders are insufficient to protect the assets. Thus, the Court is unable to conclude that respondents will suffer irreparable harm absent a preliminary injunction.

Lastly, respondents must show that the balance of the equities is in their favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d at 840; Sardino v Scholet Family Trust, 192 AD3d 1433, 1434 [3d Dept 2021]). The Court must "determine the relative prejudice to each party accruing from a grant or denial of the requested relief" (Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 AD3d 430, 432 [1st Dept 2016]). The Court concludes that the equities weigh in favor of petitioner. Respondents' and petitioner's competing interests in the residence remain in dispute and, therefore, neither property interest can be said to have precedence over the other at this juncture. Further, Scott Spiro is able to fulfill his obligations as preliminary executor of the estate without the issuance of the preliminary injunction. As discussed above, there are so [*10]ordered stipulations permitting Scott Spiro and Jason Spiro access to the residence through independent third parties, and respondents have not adequately demonstrated that petitioner has prevented or prohibited access. Since decedent's death, Scott Spiro, a real estate appraiser and a representative of Sotheby's, among others, have had access to the residence, albeit not to respondents' satisfaction. And there is no demonstrated harm or threat of harm to estate assets. By contrast, the potential disruption to petitioner's quiet enjoyment of the residence pending a final determination of the parties' rights to the property if respondents' injunctive relief is granted outweighs the inconvenience to respondents in abiding by the parties' stipulations in carrying out executorial functions and collecting personal items if the injunction is denied.

Finally, respondents seek an order vacating the Court's TRO dated July 9, 2021 wherein respondents were restrained, pending a determination of this proceeding, from taking any action that would diminish the value of or alter legal ownership of the residence, or interfere with petitioner's use and quiet enjoyment of the residence including the initiation of any proceedings for eviction or termination of her leasehold. CPLR 6314 permits "[a] defendant enjoined by a preliminary injunction [to] move at any time . . . to vacate or modify it." "A motion to vacate or modify [pursuant to CPLR 6314] is addressed to the sound discretion of the court and may be granted upon 'compelling or changed circumstances that render continuation of the injunction inequitable'" (Wynkoop v 622A President St. Owners Corp., 169 AD3d 1103, 1105 [2d Dept 2019], quoting Thompson v 76 Corp., 54 AD3d 844, 846 [2d Dept 2008] [internal quotation marks and citation omitted]).

Respondents argue in support of their motion that the TRO should be vacated because petitioner failed to give advance notice to respondents of her application, to demonstrate imminent or irreparable harm if the injunction was not granted, or to establish her likelihood of success on the merits of this proceeding, and because the equities weigh heavily in their favor. CPLR 6313 allows the Court to grant a TRO without notice to the party to be restrained and before a hearing can be held if the movant establishes that "immediate and irreparable injury, loss or damages will result" absent its issuance. TROs "serve[] the short-term purpose of maintaining the status quo while a motion for a preliminary injunction is pending" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 6313).

Petitioner established at the time of her application the risk of serious prejudice to her absent issuance of a TRO through her testimonial and documentary submissions in support of the application wherein she described a contentious relationship with decedent's sons which has been exacerbated by Scott Spiro's current status as trustee and preliminary executor. Consequently, petitioner claimed to be at risk of eviction from the residence by respondents, given their opposition to her attempts to exercise an option to purchase the residence and their previous attempt to have this Court issue an order to show cause which included immediate eviction of petitioner. Respondents' proof offered in support of their motion does not establish that the circumstances supporting petitioner's initial application for a TRO have sufficiently changed as to warrant vacating the order. The parties' relationships remain contentious and their rights to the residence remain in dispute. An issue of fact also remains with respect to the likelihood of either parties' ultimate success on the merits which is but one factor to be considered in the exercise of this Court's discretion and is not "an adjudication on the ultimate merit of the underlying action" in any event (Rural Community Coalition, Inc. v Village of Bloomingburg, 118 AD3d at 1095). For the reasons discussed above, the Court concludes that the equities weigh in favor of petitioner.

Furthermore, the parties' so ordered stipulations provide respondents with ways to accomplish those things they seek through their instant motion for injunctive relief without vacating the TRO and potentially jeopardizing petitioner's quiet enjoyment of the place that she has called home for more than 10 years. The estate has sufficient funds to employ third parties to inventory, appraise and repair estate assets and, as previously noted, there is no demonstrated harm or threat of harm to estate assets. Accordingly, respondents' motion to vacate the TRO issued July 9, 2021 is denied. A TRO is a stopgap measure, however, and a hearing to determine whether a preliminary injunction should be issued enjoining respondents from acting in accordance with the July 9, 2021 TRO must be held (see CPLR 6311, 6313). Any remaining contentions, to the extent not specifically addressed, have been considered and found to be lacking in merit or not ripe for determination. It is

ORDERED that a supplemental citation will be issued with regard to the unborn descendants of Scott Spiro and Jason Spiro, and guardians ad litem will be appointed to represent the interests of each of the sons' unborn descendants, unless respondents submit information sufficient to permit Sarah Spiro to virtually represent the unborn descendants of Scott Spiro, in which case only one guardian ad litem will be appointed for the unborn descendants of Jason Spiro; and it is further

ORDERED that respondents' motion for a preliminary injunction is denied; and it is further

ORDERED that respondents' motion to vacate the temporary restraining order issued by the Court on July 9, 2021 is denied; and it is further

ORDERED that a hearing to determine whether a preliminary injunction should be granted enjoining respondents from taking any action in accordance with the July 9, 2021 TRO shall be held as soon as practicable following entry of this Decision and Order and after jurisdiction is obtained over all necessary parties and upon the consent of the parties and approval of the Court.

This constitutes the Decision and Order of the Court.

Dated and Entered: November 17, 2021

Hon. Stacy L. Pettit, Surrogate

Papers Considered:

1. Notice of Cross-Motion dated August 3, 2021;

2. Respondents' Memorandum of Law in Opposition to Verified Petition, in Support of Respondents' Counterclaims, and in Support of Respondents' Cross-Motion for a Preliminary Injunction and to Vacate Temporary Restraining Order dated August 3, 2021;

3. Affidavit of Jason Spiro in Support of Respondents' Cross-Motion dated August 8, 2021;

4. Affidavit of Scott Spiro in Support of Respondents' Cross-Motion dated August 2, 2021with exhibits;

5. Affirmation of Richard E. Rowlands, Esq. in Support of Respondents' Cross-Motion dated August 2, 2021 with exhibits;

6. Affidavit of Kevin J. McCoy in Support of Respondents' Cross-Motion dated August 2, 2021;

7. Affirmation of Lucy Kats, Esq. in Support of Respondents' Cross-Motion dated August 3, 2021 with exhibits;

8. Affidavit of Kira Spiro in Opposition to Respondents' Cross-Motion dated August 9, 2021;

9. Affirmation of Paul DerOhannesian Jr., Esq. in Opposition to Respondents' Cross-Motion dated August 9, 2021 with exhibits;

10. Reply Affirmation of Lucy Kats, Esq. dated September 20, 2021; and

11. Reply Affidavit of Scott Spiro dated September 20, 2021 with exhibits. Footnotes

Footnote 1:Decedent's Revocable Trust was subsequently amended on December 13, 2013, March 11, 2014, February 6, 2019 and December 19, 2020.

Footnote 2:QPRT1 provides for an "initial term" that begins on the first day that the property is transferred to trustees and ends on the earlier of the eighth anniversary of the transfer of the property or decedent's death. The duration of QPRT2's "initial term" is the same except that the anniversary date was extended to the tenth anniversary of the transfer of the property.

Footnote 3:It should be noted that petitioner does, in any event, have an option to purchase the residence at its appraised value which predates the amendment setting the price at $300,000, and she could still exercise that option even if the $300,000 price is found not to be enforceable.

Footnote 4:Moreover, any interpretation that decedent retained rights to transfer interests in the residence pursuant to the QPRTs would run contrary to the irrevocable nature of such trusts (see Matter of Doman, 110 AD3d 1073 [2d Dept 2013], lv denied 23 NY3d 903 [2014]; Del Broccolo v Torres, 4 Misc 3d 510, 513 [Sup Ct, Nassau County 2004]). Nor does decedent's self-appointment under the QPRTs as the Subsitutor provide him with the authority to enter into the March 3, 2021 changes to the amended agreement. Decedent's authority as the Substitutor is limited to the power "to acquire or reacquire any asset or assets forming part of the trust estate of any trust held under this Trust Agreement by substituting other property of an equivalent value."