Opinion
11-30-2016
In the Matter of Eshagh ESHAGHIAN, also known as E. Ike Eshaghian, deceased. David Eshaghian, respondent; Mahrokh Eshaghian, et al., appellants.
Nick Fiore, Pound Ridge, NY, for appellants. Dorsey & Whitney LLP, New York, NY (David C. Singer, Joshua Colangelo–Bryan, and Elizabeth Rozon Baksh of counsel), and Albanese & Albanese, LLP, Garden City, NY (Thomas O. Rice of counsel), for respondent (one brief filed).
Nick Fiore, Pound Ridge, NY, for appellants.
Dorsey & Whitney LLP, New York, NY (David C. Singer, Joshua Colangelo–Bryan, and Elizabeth Rozon Baksh of counsel), and Albanese & Albanese, LLP, Garden City, NY (Thomas O. Rice of counsel), for respondent (one brief filed).
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.
In a probate proceeding in which David Eshaghian petitioned, inter alia, pursuant to SCPA 2102(1) to compel the turnover of information concerning the assets of the estate of Eshagh Eshaghian, also known as E. Ike Eshaghian, the coexecutrices of the estate, Mahrokh Eshaghian and Tanaz Eshaghian, appeal from an order of the Surrogate's Court, Queens County (Kelly, S.), dated July 9, 2014, which denied their motion for leave to reargue their prior motion for summary judgment for several declarations, which was denied in an order of the same court dated January 15, 2014, for resettlement of the order dated January 15, 2014, and for leave to serve an amended pleading.
ORDERED that the appeal from so much of the order dated July 9, 2014, as denied those branches of the appellants' motion which were for leave to reargue their prior motion for summary judgment and for resettlement of the order dated January 15, 2014, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument, or from an order denying resettlement of the substantive or decretal provisions of a prior order or judgment (see County of Suffolk v. Long Is. Power Auth., 100 A.D.3d 944, 944–945, 954 N.Y.S.2d 619 ; Braun v. Edwards Trucking & Warehousing, Inc., 68 A.D.3d 699, 700, 889 N.Y.S.2d 676 ); and it is further,
ORDERED that the order dated July 9, 2014, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the appellants' motion which was for leave to serve an amended pleading, and substituting therefor a provision granting that branch of the motion; as so modified, the order dated July 9, 2014, is affirmed insofar as reviewed, without costs or disbursements.
Eshagh Eshaghian, also known as E. Ike Eshaghian (hereinafter the decedent), died in May 2003. Mahrokh Eshaghian and Tanaz Eshaghian are the coexecutrices of his estate. In this proceeding, which was brought by the decedent's brother, David Eshaghian, the coexecutrices moved for summary judgment for several declarations. The Surrogate's Court denied their motion in an order dated January 15, 2014. Subsequently, the coexecutrices moved for leave to reargue their summary judgment motion, for resettlement of the order dated January 15, 2014, and for leave to serve an amended pleading. The court denied this motion, and the coexecutrices appeal.
After the Surrogate's Court directed the dismissal of the petition itself, the coexecutrices sought leave under CPLR 3025(b) to serve an amended pleading to assert additional claims against the petitioner. The court denied that branch of their motion on the ground that the coexecutrices' proposed amended pleading "change[d] their status to become the petitioners," and because the relief they requested was required to be "initiated by a petition."
Motions for leave to amend pleadings are governed by the liberal standard of CPLR 3025(b). "In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Lucido v. Mancuso, 49 A.D.3d 220, 220, 851 N.Y.S.2d 238 ; see Matter of Hersh, 129 A.D.3d 840, 840, 11 N.Y.S.3d 630 ; Joazard v. Joazard, 83 A.D.3d 664, 665, 919 N.Y.S.2d 903 ; G.K. Alan Assoc., Inc. v. Lazzari, 44 A.D.3d 95, 99, 840 N.Y.S.2d 378, affd. 10 N.Y.3d 941, 862 N.Y.S.2d 855, 893 N.E.2d 133 ). Moreover, the party seeking leave to amend a pleading is not required to make an evidentiary showing of merit (see Joazard v. Joazard, 83 A.D.3d at 665, 919 N.Y.S.2d 903 ; Lucido v. Mancuso, 49 A.D.3d at 229, 851 N.Y.S.2d 238 ).
Despite the dismissal of the petition itself by the Surrogate's Court, the coexecutrices' counterclaims remained viable (see Matter of Eshaghian, 144 A.D.3d 1154, 43 N.Y.S.3d 377 [Appellate Division Docket No. 2014–03293; decided herewith]; Kane v. Kane, 163 A.D.2d 568, 570, 558 N.Y.S.2d 627 ; see generally Turnberry Residential Ltd. Partner, L.P. v. Wilmington Trust FSB, 99 A.D.3d 176, 186, 950 N.Y.S.2d 362 ; cf. generally Schwartz v. Lois Assocs., 149 A.D.2d 307, 309–310, 539 N.Y.S.2d 360 ). " ‘A counterclaim is in essence a complaint by a defendant against the plaintiff and alleges a present viable cause of action upon which the defendant seeks judgment’ " (Kane v. Kane, 163 A.D.2d at 571, 558 N.Y.S.2d 627, quoting Edelman v. Edelman, 88 Misc.2d 156, 159, 386 N.Y.S.2d 331 [Sup.Ct., Nassau County] ; see CPLR 3019[d] ["A cause of action contained in a counterclaim or a cross-claim shall be treated, as far as practicable, as if it were contained in a complaint"]; Siegel, NY Prac. §§ 224, 229 [5th ed 2011] ). In properly asserting their counterclaims (see SCPA 102 ; 201 [3]; CPLR 3011 ; Matter of Zalaznick, 84 Misc.2d 715, 718–719, 375 N.Y.S.2d 522 [Sur.Ct., Bronx County] ; 1–5 Warren's Heaton, Surrogate's Court Practice § 504), the coexecutrices were, in substance, petitioners. Further, since the court had already directed the dismissal of David Eshaghian's petition, the coexecutrices were the only remaining "petitioners" in the proceeding. In denominating themselves as "petitioners" in their proposed amended pleading, the executrices were merely recognizing this circumstance. Moreover, there is no indication that the coexecutrices' proposed amended pleading was palpably insufficient or patently devoid of merit, or that David Eshaghian would be unfairly surprised or prejudiced as a result of the coexecutrices' delay in seeking to serve an amended pleading (see Matter of Hersh, 129 A.D.3d at 840, 11 N.Y.S.3d 630 ; Lucido v. Mancuso, 49 A.D.3d at 221, 851 N.Y.S.2d 238 ). Accordingly, the court improvidently exercised its discretion in denying that branch of the coexecutrices' motion which was for leave to serve an amended pleading.