Opinion
2003-669/A
05-04-2021
In the MATTER OF the Application of Robert K. DECKER, in re Estate of Walter C. Decker, Sr., Petitioner, to compel a judicial accounting.
Robert K. Decker, Petitioner, Pro Se Kelly A. Pressler, Esq., Jacobowitz & Gubits, LLP, Attorneys for the Objectant, 158 Orange Avenue, Walden, NY 12586
Robert K. Decker, Petitioner, Pro Se
Kelly A. Pressler, Esq., Jacobowitz & Gubits, LLP, Attorneys for the Objectant, 158 Orange Avenue, Walden, NY 12586
Timothy P. McElduff, Jr., S.
The following papers were considered on this application by Petitioner Robert K. Decker for issuance of a Lis Pendens/Notice of Pendency:
1. Petitioner's "Application or Issuance of Lis Pendens Notice Pursuant to the Laws of NYS by Affidavit" sworn to on April 14, 2021, together with proposed Lis Pendens;
2. Letter of Kelly A. Pressler, Esq. dated April 26, 2021 submitted in opposition.
Background
Walter C. Decker, Sr. (the "Decedent") died on June 3, 2003. He left three surviving sons: Walter C. Decker, Jr. (the Objectant herein), William S. Decker and Robert K. Decker (the Petitioner herein). Pursuant to the Decedent's Last Will and Testament, all assets held by the Decedent at the time of his death were added to the assets of the Walter C. Decker, Sr. Revocable Living Trust dated October 31, 1994 (the Trust). Objectant Walter Jr. was appointed as the Executor of the Estate and Trustee of the Trust. Pursuant to an "Agreement Regarding Settlement of Estate and Trust and Distribution of Assets" filed on March 24, 2008 (the "Settlement Agreement"), Walter Jr., William and Robert agreed to certain distributions of estate/trust assets. With regard to Robert, he acknowledged the prior receipt of a distribution in the amount of $150,000.00 to be held for his benefit, plus an additional final distribution of $210,000.00 from the Estate/Trust to be "held pursuant to the terms of the Trust." On December 6, 2007, Robert executed a Receipt and Release acknowledging receipt of money in the amount of $360,000.00 and, in exchange therefor, releasing and discharging Walter Jr. from all liability from all matters relating to or derived from the administration of the estate and settlement of its account. As recited in the Settlement Agreement, an accounting was submitted for the period of June 3, 2003 through June 30, 2007.
In this proceeding, by Petition filed on September 16, 2019, Petitioner Robert K. Decker, has sought an Order compelling Trustee/Objectant Walter C. Decker, Jr. to account for the funds held in trust for his benefit, which the record indicates being in the initial aggregate amount of $360,000.00.
The Objection and Pending Hearing
In response to the Petition, the Objectant alleged that the last distribution from the Trust was on or about 2009, that the Petitioner knew that the final distribution of the Trust in 2009 was indeed the final distribution and that the Trust was depleted at that time, without any assets or transactions since. Thus, the Objectant argued that the 6-year statute of limitations contained in CPLR § 213 bars the Petition seeking a compulsory accounting herein.
The 6-year statute of limitations on enforcement of a trustee's obligations accrues or begins to run from the time the trustee repudiates such obligations and the beneficiary has some form of notice of such repudiation/renunciation of continuing duty. In re Barabash's Estate , 31 NY2d 76, 80 (1972) ; see, e.g., In re Singer , 12 Misc 3d 621, 624 (Sur. Ct., New York Co., 2006)aff'd , 30 AD3d 211 (1st Dept. 2006) (trustee's resignation was deemed a repudiation event); Sippell v. Hayes, 189 Misc. 656, 663 (Sup. Ct., Oneida Co., 1947) (trustee failing to pay benefits/payments was deemed a repudiation event).
Here, the Objectant alleged that the last distribution from the Trust was on or about 2009, that the Petitioner knew that the final distribution of the Trust in 2009 was indeed the final distribution and that the Trust was depleted at that time, without any assets or transactions since. However, none of those allegations established a repudiation sufficient to commence the running of the statute of limitations. As a result, those allegations raised an issue of fact concerning the existence of a repudiation event and Petitioner's notice thereof. If there were a repudiation event and notice thereof prior to September 16, 2013, then the Petition would be time-barred.
Accordingly, by Decision and Order dated November 23, 2020, this Court found that a hearing on the issues of repudiation and notice would be necessary before a determination on the issue of the statute of limitations could be made.
After the resolution of three, separate motion sequences that followed the Decision and Order dated November 23, 2020, the hearing on the issues of repudiation and notice was scheduled for May 18, 2021.
The Instant Application for Issuance of a Lis Pendens/Notice of Pendency
Petitioner now requests that the Court file a notice of pendency on two parcels of real property, which, presumably were owned by the Estate of Walter, Sr.
A notice of pendency, commonly known as a lis pendens , is a provisional or pre-judgment remedy available to litigants asserting claims in any action or proceeding in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property. See CPLR § 6501. It is a powerful device that impacts the alienability of property. 5303 Realty Corp. v. O & Y Equity Corp. , 64 NY2d 313 (1984). As such, a notice of pendency is only available in certain types of actions. "[C]ourts have been frequently confronted by attempts to file a notice of pendency in controversies that more or less referred to real property, but which did not necessarily seek to directly affect title to or possession of the land. In the absence of this direct relationship, the remedy was denied." 5303 Realty Corp. , 64 NY2d at 321.
A proceeding to compel a judicial accounting in Surrogate's Court, by itself, does not fall within the purview of an "action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property" for the purposes of CPLR § 6501. See, e.g., Will of Sabatino , 90 Misc 2d 56 (Sur. Ct., Albany Co., 1977) ; see also, Cassia v. Cassia , 125 Misc 2d 606 (Sup. Ct., Westchester Co., 1984).
Here, the Petitioner's proceeding to compel an accounting concerns $360,000.00 in funds that were distributed from the Estate of Walter Sr. to be held in trust for the benefit of the Petitioner. No interest in real property (or real property held in trust) is at issue in this proceeding. Compare , Estate of Sakow , 137 Misc 2d 548 (Sur. Ct., Bronx Co., 1987) (denying application to cancel filed notices of pendency where estate accounting proceeding expressly included an action to impose a constructive trust and where decedent's estate consisted of parcels of or interests in real property held in trust for the residuary beneficiaries/petitioners).
While the Petitioner could potentially have a money claim against the Objectant/Trustee relating to his handling of the trust funds over the years, that type of claim would not affect the title to, or the possession, use or enjoyment of real property. See, e.g., Cassia v. Cassia , 125 Misc 2d 606 (Sup. Ct., Westchester Co., 1984) (finding that defendant's money claim against an estate, which was based upon the spousal right of election, could be satisfied out of the real property assets of the estate or proceeds from the sale thereof; however, such a money claim could not be used to form the basis of a notice of pendency; application to cancel filed notice of pendency was granted).
As a result, Petitioner's application to file a notice of pendency is hereby denied.
This constitutes the Decision and Order of the Court.