Opinion
97049/08.
Decided November 17, 2009.
VICTOR GENECIN, ESQ., SQUIRE, SANDERS DEMPSEY, LLP, Attorneys for Petitioners, FECP HEADLEE NEWBURG MANAGEMENT, INVESTORS 10/06 LLC and FECP, MONTGOMERY BWW INVESTORS, New York, New York.
THOMAS F. KELLY, III, ESQ., KELLY MEENAGH, LLP, Attorneys for the Estate of JAN HEADLEE, Poughkeepsie, New York.
This petition by FECP HEADLEE NEWBURG MANAGEMENT INVESTORS 10/06 LLC and FECP MONTGOMERY BWW INVESTORS 8/06, LLC ("petitioners") pursuant to SCPA §§ 1808 and 1809 for an order compelling the executor of the estate of Jan A. Headlee to set aside the sum of $989,544.00 (nine hundred eighty-nine thousand five hundred and forty-four dollars) to pay the amounts due and owing from the estate to FEC, or to show cause why FEC's claims should not be allowed, is denied. Petition dismissed.
BACKGROUND
The decedent died testate on May 21, 2008. Preliminary letters testamentary were issued to Andre Moglia in an order, dated June 19, 2008. The decedent's will, dated December 22, 2000, was admitted to probate by decree dated August 28, 2008. Full letters were issued to Moglia ("the executor"). He continues to serve in that capacity. The probate petition estimates the value of the decedent's gross testamentary estate as greater than $500,000.00 but less than $1 million. The executor has not complied with 22 NYCRR § 207.20 by his failure to furnish the court with a list of assets constituting the gross estate for tax purposes.
CLAIMS
Several claimants have filed claims against the estate. They are MIAC, Inc. ($87,832.00), Provident Bank ($89,294.58), Riverside Bank ($191,000.09), Bank of America, N.A. ($6,124,690.49), and petitioners ($1,076,264.00).
THE RECORD
The Court has taken judicial notice of undisputed court records and files. ( Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill , 8 AD3d 485 [2d Dept. 2004].)
The Court's file reveals that the executor has taken no action with respect to either allowing or rejecting the previously filed claims. By law, they were deemed rejected ninety (90) days of their presentation. (SCPA § 1806.) It is settled law that delay in rejecting a claim does not establish the claim. ( In re Clauss, 16 AD 34 [2d Dept. 1897]; 2009 Civil Practice Annual, SCPA § 1806 Practice Insights by Hon. C. Raymond Radigan.)
The record reveals that petitioners instituted two actions in New York County Supreme Court on or about March 9, 2009 against the estate and corporate businesses in which the decedent possessed an interest at his death. The actions are grounded in the same instruments which form the basis for petitioners' claim in this court. The action commenced by petitioner FECP MONTGOMERY BWW INVESTORS 8/06, LLC bears index number 600732/2009. The action brought by petitioner FECP HEADLEE NEWBURG MANAGEMENT INVESTORS 10/06 LLC bears index number 111657/2009. There is presently pending a motion and cross-motion for summary judgment pursuant to CPLR Rule 3212 in the FECP MONTGOMERY action and a motion for summary judgment in lieu of complaint pursuant to CPLR § 3213 in the FECP HEADLEE NEWBURG action.
The claims of MIAC, Inc., Provident Bank, Riverside Bank and Bank of America are documented in the court's file. Petitioners' claims were filed with the court on August 24, 2009. They were included in the notice of petition which commenced this proceeding. However, counsel for petitioners states that the executor was served by mail on April 10, 2009 with documents entitled Notices of Unliquidated and/or Contingent Claims accompanied by supporting affidavits. It is uncontradicted that the executor neither allowed or rejected the claims. Therefore, they were deemed rejected on or about July 9, 2009. (SCPA § 1806.)
DECISION
It is settled that a claimant against an estate retains the option of bringing an action either in Surrogate's Court or in another civil court with subject matter jurisdiction. ( Matter of Nutter, 280 AD 1035 [4th Dept. 1952]; Turano and Radigan, New York Estate Administration, 2009 ed., § 5.07[b].) If the claimant chooses the latter, the action must be commenced in the other forum within sixty (60) days after the claim is rejected. (SCPA § 1810; New York Estate Administration, supra, § 5.07[b].) The failure to timely comply with the sixty (60) day "short Statute of Limitations" relegates the claimant to having the Surrogate's Court decide the claim. ( Homemakers Inc. of Long Island, Tradings as UpJohn Healthcare Services, Inc. v. Williams, 131 AD2d 636, 638-39 [2d Dept. 1987].)
The record in this proceeding indicates that the petitioner reversed the process. They commenced separate actions in the Supreme Court earlier in the year to seek enforcement and possible judgment regarding their claims. They chose their remedy and are now awaiting decisions in each case based upon summary judgment motions. They cannot expect to achieve by indirection in this court that which they hope to obtain in the Supreme Court. To grant the relief requested by petitioners would be tantamount to giving them a second opportunity to succeed on their claims.
The petitioners have made their choice. This court declines to accept jurisdiction of this application based upon the previously discussed facts and applicable law.
On this application, the Court considered the notice of petitioner supported by an affirmation supported by one (1) exhibit containing eight (8) exhibits, affirmation in opposition with nine (9) exhibits and reply affirmation with four (4) exhibits.
Counsel for the executor is directed to submit a decree consistent with the foregoing with notice of settlement within ten (10) days from the date of this decision.
The foregoing constitutes the decision of the Court.