Opinion
2020-401
11-02-2020
Administration Proceeding regarding the ESTATE OF Martin KOKSVIK, Deceased.
Paul Koksvik, Petitioner Pro Se David L. Russell, Esq., 52 North Plank Road, Newburgh, New York 12550, Attorney for Respondents
Paul Koksvik, Petitioner Pro Se
David L. Russell, Esq., 52 North Plank Road, Newburgh, New York 12550, Attorney for Respondents
Timothy P. McElduff, Jr., S.
The following papers were read and considered on this motion by Respondents Barbara Koksvik, Marge Brando, Ann McDonald and Mary Verdegaal's for an Order pursuant to CPLR § 3211(a)(7) dismissing the Verified Petition of Paul D. Koksvik herein, together with such other or further relief as the Court deems just and proper:
1. Respondents' Notice of Motion dated September 30, 2020, together with the Affirmation of David L Russell, Esq. dated September 30, 2020, the Affidavit of Barbara Koksvik sworn to on September 30, 2020 and Exhibits A and B annexed thereto; and
2. The Surrogate's Court file in this matter.
Procedural History
In this proceeding, Petitioner, Paul D. Koksvik, has sought to be appointed as Administrator of the Estate of Martin Koksvik, his brother (the "Deceased"). By Citation dated July 23, 2020, Barbara Koksvik (the Deceased's widow), Marge Brando, Ann McDonald and Mary Verdegaal (the Deceased's sisters; collectively, the "Respondents") were cited to show cause, on September 9, 2020, why Letters of Administration should not issue to Petitioner Paul D. Koksvik.
On September 9, 2020, Petitioner appeared at the Court's calendar call pro se and elected to proceed pro se . Respondents appeared by and through counsel. The Court conferenced the matter during the calendar call and issued a Scheduling Order, which was later reduced to writing and dated September 15, 2020. The Scheduling Order set forth dates/deadlines for the Respondents to file a motion to dismiss, for the Petitioner to oppose any motion to dismiss and for Respondents to reply to any opposition.
Respondents served and filed a motion to dismiss the petition herein. Pursuant to the Scheduling Order, Petitioner's opposition was due on or before October 21, 2020. Petitioner has failed to file any opposition and his time to do so has not been extended. Further, the Petitioner failed to appear at the court conference on October 28, 2020 pursuant to the Court's Scheduling Order. The Respondents did appear at the court conference on October 28, 2020.
Prior Motion Practice in this Proceeding
Although the Petitioner did not file opposition to the instant motion to dismiss, on October 9, 2020, Petitioner Paul Koksvik filed an ex parte application in which he submitted documents entitled "Writ of Entry Jurisdiction in Rem Warrant of Seizure Discovery Proceeding," "Warrant of Seizure Discovery Proceeding" and "Bill of Quia Timet" (collectively, the "Documents"). By these Documents, the Petitioner sought the Court's approval and endorsement of Petitioner's plan to search and seize items of personal property and multiple parcels of real property that had been owned by the Decedent, but were currently owned by his surviving wife, Barbara Koksvik, including her home.
In support of the ex parte application, the Petitioner referenced 18 U.S.C. § 985, "Civil forfeiture of real property." However, 18 U.S.C § 985 was inapplicable and provided no authority here. That statute pertains to the federal government's ability to seize real property in response to crimes committed against the United States. See 18 U.S.C. §§ 981 - 987 ; see e.g., United States v. Real Prop. Located at 11211 E. Arabian Park Drive, Scottsdale, AZ , 379 F. Supp. 2d 1058, 1059 (D. Ariz. 2005). The Petitioner also sought a Bill of Quia Timet , an ancient remedy, which seeks to compel the determination of all claims to real property and has been codified in Article 15 of the New York Real Property Actions and Proceedings Law. Cty. of Westchester v. Town of Harrison , 201 Misc. 211 (Sup. Ct., Westchester Co., 1951) ; Tysen v. City of New York , 122 Misc. 627 (Sup. Ct., Richmond Co., 1924). There is no evidence that the Petitioner ever filed or adjudicated any action under RPAPL Article 15 concerning any of the real property he mentioned.
By Decision and Order dated October 9, 2020, the Court denied Petitioner's ex parte application.
On October 14, 2020, the Petitioner filed a second ex parte application to reargue the Court's Decision and Order dated October 9, 2020 pursuant to Rule 60 of the Federal Rules of Civil Procedure, which the Court treated as a motion to reargue under CPLR § 2221.
By Decision and Order dated October 23, 2020, the Court denied Petitioner's motion to reargue because the Petitioner failed to establish that the Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law in the prior Decision and Order dated October 9, 2020. Instead, the Petitioner merely re-submitted the same motion papers/arguments, word for word, with his instruction to change the outcome. Thus, Petitioner's motion to reargue was merely presented as a vehicle to argue again the very question that was previously decided. Foley v. Roche , 68 AD2d 558, 567-68 (1st Dept. 1979).
Based upon the Petitioner's petition herein and his ex parte submissions discussed above, the Petitioner claims that past fraudulent conveyances occurred and, therefore, he is seeking to undo several unspecified real estate transactions dating back into the 1980s and other unspecified transactions that may have occurred with proceeds from those sales and, by his ex parte applications, seeks to seize and take possession of those parcels or funds for himself in furtherance of his claim(s).
Eligibility to Receive Letters pursuant to SCPA § 707
Respondents' motion to dismiss raises the issue of whether the Petitioner is eligible to receive Letters of Administration pursuant to SCPA § 707(1)(e), which provides, " Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows: ...(e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office."
The holder of letters is a fiduciary who cannot harbor divided loyalty to the estate. In re Badore's Will , 73 Misc 2d 471, 476 (Sur. Ct., Franklin Co., 1973) (stating that, "... a fiduciary might be removed where a conflict of interest motivates that fiduciary to seek personal advantage and gain at the expense and to the detriment of the estate"; characterizing such conflict of interest as improvidence and denying issuance of letters). A denial of letters on the ground of conflict of interest has been deemed proper if the conflict is sufficiently serious that, in the opinion of the court, it makes it impossible for the fiduciary to administer the estate in a fair manner. See, e.g., Application of Wehrli (State Report Title: Matter of Jurzykowski) , 36 AD2d 488 (1st Dept. 1971), aff'd sub nom. Application of Wehrli , 30 NY2d 510 (1972) ; In re DeBelardino's Estate , 47 AD2d 589 (4d Dept. 1975) (letters of administration were revoked upon grounds of improvidence or dishonesty where fiduciary made a gift of the decedent's securities to himself and where fiduciary had defaulted on loans secured by decedent's collateral, thereby creating a conflict of interest between the fiduciary and the decedent's estate sufficient to render the fiduciary ineligible to serve).
Furthermore, while hostility or animosity by itself will not typically disqualify a fiduciary, disqualification is warranted if the disharmony jeopardizes the interests of the beneficiaries and the proper administration of the estate. Matter of Estate of Rad , 162 Misc 2d 229, 232 (Sur. Ct., New York Co., 1994) (holding that where the proof suggested that the proposed fiduciary's hostility and determination to control the estate for her own benefit, she would not be able to act impartially and, therefore, she should be disqualified due to her combined conflict of interest and hostility rendering her "unfit for the execution of the office" pursuant to SCPA § 707[1][e] ).
Here, Petitioner Paul Koksvik is not eligible to receive Letters of Administration due to his unfitness for the execution of the office and/or improvidence pursuant to SCPA § 707(1)(e). The documentary evidence submitted with Respondents' motion to dismiss demonstrates hostility and animosity between him and sole distributee/surviving spouse, Barbara Koksvik. More significantly, however, are the Petitioner's blatant conflicts of interest with his would-be fiduciary duties. Thus far, Petitioner's sole actions in the Estate of Martin Koksvik have been to attempt to strip the Estate and its sole distributee/surviving spouse, Barbara Koksvik, of substantial assets, including the surviving spouse's home. Whether or not the Petitioner's claims or actions against the Estate are legitimate, they are completely incompatible with the fiduciary duty owed to the Estate and its sole distributee. This record demonstrates that the Petitioner is not only self-interested and conflicted, but adverse and antagonistic towards the Estate such that it makes it impossible for the fiduciary to administer the estate in a fair manner. Consequently, the Petitioner is ineligible for the issuance of Letters of Administration due to improvidence and unfitness for the execution of the office pursuant to SCPA § 707(1)(e).
Conclusion
For the foregoing reasons, Respondents' motion to dismiss is granted and the Verified Petition herein is hereby denied and dismissed with prejudice. Furthermore, if not for the foregoing reasons, the Verified Petition is additionally dismissed because Petitioner lacks priority of appointment over Respondent Barbara Koksvik (who has not consented to Petitioner's appointment or waived her rights, see SCPA § 1001 ) and because Petitioner failed to appear for the court-ordered conference of October 28, 2020 (see 22 NYCRR 202.27 [b] ).
This constitutes the decision and order of the court.