In this SCPA §2105 ‘Petition to Compel Delivery of Property by a Fiduciary’ entertained on August 21, 2018, Petitioner, P. Stasinopoulos (hereinafter “Petitioner”) Decedent’s surviving spouse, sought to compel Marilyn and Georgia Stasinopoulos, Decedent’s daughters, co-fiduciaries and the Respondents’ herein, to turn over the real property located at 2160-62 Forest Avenue, Staten Island, NY, alleging that he is the rightful owner of said property. The Respondents, who are also the daughters of the Petitioner, argue that the real property is part of the estate and rightfully belonged to the decedent at the time of her death and accordingly, the property should be distributed in accordance to the Decedent’s Last Will and Testament, which was already admitted to probate on April 28, 2017. Petitioner and Respondents acknowledge the Right of Election filed by the Petitioner. Furthermore, Petitioner seeks to enjoin and restrain the Respondents from transferring, selling, marketing, mortgaging or disposing the property in any way, while the Respondents, are seeking to sell the property to a purchaser who has offered to purchase it for an all cash deal.The Court has reviewed the following documents submitted by the parties: Petitioner’s SCPA§2105 ‘Petition to compel Delivery of Property by a Fiduciary entertained on August 21, 2018′, an ‘Affidavit in Support of the Order to Show with a TRO’ filed on August 20, 2018, and an ‘Affirmation in Support of Order to Show Cause with T.R.O’ filed on August 20, 2018. Respondents filed an ‘Affirmation in Opposition to Order to Show Cause’ on September 26, 2018. Oral argument was heard on October 11, 2018 and Petitioner filed a ‘Reply Affidavit’ and a ‘Reply Affirmation & Further Support of OSC with TRO’ on October 11, 2018. Oral argument was heard before the Surrogate on October 11, 2018.The crux of the issue herein is based on two questions. First, whether the transfer of the real property by the Decedent to herself, using a power of attorney in which she was the agent and the Petitioner was the principal, was a valid transfer. Second, whether the circumstances herein warrant the Respondents be enjoined from transferring or encumbering the real property in any way. Based on the papers heretofore submitted and the oral argument, the court determines that discovery and a hearing must be conducted in order to determine whether the transfer was valid. On the issue of encumbering the real property, the court finds that the Petitioner has not met his burden in having the Court grant a preliminary injunction and that the Respondents may in fact, proceed with the sale of the real property, but all proceeds are to be held in escrow pending the outcome of the hearing on the validity of the transfer.FACTSThe undisputed facts are as follow: the Petitioner and the Decedent were husband and wife at the time of her death. They had two children during their marriage, Marilyn and Georgia, the Respondents herein. The Petitioner acquired title to the real property on or about 1985. In 1990, the real property was in Petitioner’s name alone. On or about the year 2000, Petitioner was convicted of conspiracy to commit wire fraud. In the year 2000, Petitioner individually applied for a mortgage loan for $300,000 with Victory State Bank. That mortgage loan did not occur. Around that time, Petitioner also executed a N.Y. Durable General Power of Attorney appointing his wife, the Decedent herein, as his attorney in fact. On or about June 2002, the Decedent transferred the real property to herself. The deed transfer was re-executed on September 17, 2002. The Decedent and the Petitioner were separated around 2012. The decedent died January 3, 2016 leaving behind a Last Will and Testament, which was admitted to probate on April 28, 2017. Said Last Will and Testament specifically disinherited the Petitioner, although it did leave him a specific bequest under specific terms. The Petitioner filed for his right of election on May 26, 2017.DiscussionBoth sides make compelling and zealous arguments regarding the validity of the transfer of the real property located at 2160-62 Forest Avenue, Staten Island, NY. However, there are numerous issues of fact that cannot simply be adjudicated by the papers submitted nor by the oral argument heard. [T]he rule is clear that “credibility of persons having exclusive knowledge of facts should not be determined by affidavits submitted on summary judgment motions, but rather at trial by the trier of facts’ (Koen v. Carl Co., 70 AD2d 695, 416 NYS2d 396)” (Fisher v. Kavoussi, 90 AD2d 597, 599, 456 NYS2d 439 [1982]; see also DeSario v. SL Green Mgt. LLC, 105 AD3d 421, 422, 963 NYS2d 24 [2013] [any determination based on credibility of the parties is to be determined at trial]).” Matter of Dolloff v. Dolloff, 2015 NY Slip Op 25219, 8, 49 Misc. 3d 440, 453, 12 N.Y.S.3d 848, 857 (Sur. Ct.)Therefore, we now turn to the issue of the preliminary injunction and whether this court should continue the Temporary Restraining Order prohibiting the fiduciaries from encumbering, selling, transferring the real property in any way. CPLR 6301 titled “Grounds for preliminary injunction and temporary restraining order” states ‘A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.’ Applying the traditional three-pronged preliminary injunction test, the Court must decide whether the petitioner has a likelihood of success on the merits of the underlying action, whether irreparable injury will result without the injunction and look to balance the equities in movant’s favor.As already stated, there are numerous issues of fact that prevent the court from drawing certain conclusions, which include, but are not limited to whether or not the Petitioner knew about the transfer at the time of the transfer, and thereafter, whether consideration was given for the property, whether the property would be lost were it not for the Decedent’s actions, etc. Petitioner did not demonstrate a “likelihood” of success on the merits; while he could prevail, it is a possibility, rather than a likelihood and it is not enough to prevent the fiduciaries from performing their duties and selling the real property for an all cash deal. Applying the second prong, the court finds that the Petitioner will not suffer irreparable harm because if he prevails at the conclusion of the hearing regarding the validity of the transfer, he is entitled to the proceeds of the sale in their entirety. The property was well maintained and kept during his entire time incarcerated, and were it not for the actions of the Decedent, the property could have been lost. Therefore, while it may be argued that real property is unique, it is not enough to warrant a freeze on the sale of said real property. Applying the third prong, the Court is hesitant to have the potential sale sit in limbo while the parties commence and conclude discovery and a hearing, therefore, to balance the equities, once again, the court finds in favor of the fiduciaries.After having reviewed all of the papers heretofore submitted herein, both in support and in opposition thereto, and after having heard oral arguments, the Court is lifting the Temporary Restraining Order on said property, and allowing the fiduciaries to proceed with the sale. However, any and all proceeds must be held in an attorney escrow account with no distribution of the proceeds until a determination is made on the validity of the transfer in question.This matter is scheduled for December 12, 2018 at 9:30 a.m. for setting a discovery schedule.This decision shall constitute the Order of the Court.Dated: November, 2018
