Summary
In Carmel v Shor, 250 AD2d 475, 476 [1st Dept 1998], the court held that the Surrogate's Court could grant the relief requested, "albeit not necessarily in the form of a declaratory judgment."
Summary of this case from Private Client Group v. MarkeyOpinion
May 19, 1998
Appeal from the Supreme Court, New York County (Charles Ramos, J.)
The will of Robert Carmel was admitted to probate by the Surrogates Court, New York County on July 11, 1996. Susan Carmel, Roberts widow, was appointed a coexecutor. Various provisions of the will authorized the executors to retain, manage, maintain "and develop any estate property of any kind and to continue Roberts interest in any property or "business that he might own; The executors were specifically authorized to succeed Robert as a member of any partnership or joint venture in which Robert "had an interest.
A dispute thereafter arose as to entitlement to distributions from 11 real estate limited partnerships of which Robert had been a "general partner at the time of his death. Roberts brother, Kenneth Carmel, asserted a right to succeed Robert as general partner, pursuant to the terms of the various partnership agreements, and asserted a concomitant right to receive the distributions previously payable to Robert. Williams Real Estate Co., Inc. (Williams), the management company for all of the real estate partnerships, withheld the distributions that had been made by six of the partnerships "arising from the general partnership interest formerly held by Robert.
Kenneth commenced six companion actions in the Supreme Court against Susan and the other coexecutor, seeking a declaratory judgment that, inter alia, as a result of Roberts death and Kenneths election or succession to the position of general partner in 10 of the various partnerships, Kenneth was entitled to an equal share of the distribution made to general partners, and that the estate had no right to any such distribution.
On the same day, Susan proceeded in Surrogates Court, seeking a decree that she, as coexecutor, was entitled to receive all "of Roberts general partners share of distributions accruing since his death. A citation was thereafter issued by the Surrogates Court directing Kenneth and Williams Real Estate to appear regarding the disputed entitlement to receive the distributions from "the six real estate partnerships.
Susan then sought relief in the Supreme Court, requesting an order transferring Kenneths actions to the Surrogates Court. Her motion was denied. Susans motion to renew, based upon an advisory opinion of the Surrogates Court favoring a transfer, was similarly denied.
This appeal is from the initial order denying her motion for transfer of the actions.
We reverse. Although it does not contain mandatory language, CPLR 325(e) expresses a preference for removal to Surrogates Court of all matters affecting the administration of a decedents estate. By statute (SCPA 209), the Surrogates Court is empowered to determine a decedents interest in any property claimed to constitute a part of his gross estate and to determine the rights of any persons claiming an interest therein, as against the decedent.
It is evident that Kenneths actions, which are asserted against the coexecutors in their capacity as such and "which concern the disposition of partnership property in which the estate, as well as various beneficiaries other than Kenneth, has an interest, falls within the jurisdiction of the Surrogates Court ( see, Birnbaum v. Central Trust Co., 156 A.D.2d 309).
Accordingly, Kenneths actions are most appropriately adjudicated by the Surrogates Court. The Surrogates Court can grant all of the relief requested, albeit not necessarily in the form of a declaratory judgment ( see, Matter of Greenwold, 236 A.D.2d 400).
Therefore, since Kenneths actions affect the administration of his brothers estate, pending in the Surrogates Court, New York County, "it was an improvident exercise of discretion for the motion court to refuse to transfer Kenneths actions to the Surrogates Court.
Concur — Rosenberger, J.P., Ellerin, Wallach, Williams and Saxe, JJ.