Summary
rejecting argument that dispute was between living persons and not one affecting the estate, where the contract to convey real property plaintiff sought to have declared void was made by the decedent and the wrongs alleged by plaintiff concerned the attempted conversion of the decedent's assets and partial frustration of the decedent's testamentary plan
Summary of this case from Wagenstein v. Ellen ShwartsOpinion
September 23, 1985
Appeal from the Supreme Court, Suffolk County (Stark, J.).
Order reversed, without costs or disbursements, defendant Kruger's motion granted, and the subject action is transferred to the Surrogate's Court, Suffolk County.
On all of the evidence, Special Term's denial of defendant Victor Kruger's motion was an improvident exercise of discretion.
The essence of plaintiff's suit in the Supreme Court, Suffolk County, against defendant Victor Kruger is that, virtually on the eve of the death of decedent, Adda Caron Gundrey, residuary beneficiary Kruger, as purported attorney-in-fact for decedent, entered into a contract to sell certain real property which had been specifically devised to plaintiff under the will of Mrs. Gundrey. Plaintiff contends that the contract was an attempt by Kruger to deprive plaintiff of her specific devise and convert it for his own benefit. The decedent died before the closing could take place.
Although plaintiff argues that the dispute is between living persons and is not one affecting an estate, the contract which plaintiff would set aside was, on its face, made by the decedent, through the purported power of attorney. The alleged wrongs asserted by plaintiff concern the attempted conversion of the decedent's assets and partial frustration of the decedent's testamentary plan. In Peekskill Community Hosp. v Sayres ( 88 A.D.2d 657, lv dismissed 58 N.Y.2d 601, 689), this court held: "Wherever possible, all litigation involving the property and funds of a decedent's estate should be disposed of in the Surrogate's Court (Hollander v Hollander, 42 A.D.2d 701; Shearn v Lord, 16 Misc.2d 224; Mayer v Goldhaber, 63 Misc.2d 605; Vormbaum v Murrow, 118 N.Y.S.2d 341). Accordingly, Special Term should have exercised its power under article VI (§ 19, subd a) of the Constitution of the State of New York to direct the transfer to the Surrogate's Court (Hollander v Hollander, supra; Garland v Raunheim, 29 A.D.2d 383)".
Accordingly, the matter should be transferred to the Surrogate's Court, Suffolk County. Lazer, J.P., O'Connor, Weinstein and Neihoff, JJ., concur.