Decedent, who was divorced, died at age 75 on August 22, 2017, survived by two daughters, Kristen and Sandra. Decedent’s Last Will and Testament, dated February 28, 2013, was admitted to probate on November 28, 2017, and Kristen and Sandra were appointed co-executors of the estate. Decedent’s estate was left in equal shares to his daughters.By Order to Show Cause issued by this Court on September 11, 2018, the estate seeks information from Janis Colarusso [hereafter, Janis] about assets which it believes should potentially be part of decedent’s estate (see SCPA 2103). On October 25, 2018, Janis filed a pre-answer motion to dismiss this discovery and turnover proceeding, alleging that dismissal is warranted based (a) on documentary evidence (CPLR 3211 [a][1]), (b) the statute of limitations (CPLR 3211 [a][5]), and (c) the estate’s failure to state a cause of action against her (CPLR 3211 [a][7]). The estate opposes the dismissal motion.(A)As set out in the papers, decedent had resided with Janis since 1998. According to Janis, they “were very close and lived as husband and wife”, although they were never married to each other.The couple lived at two residences during their time together: 6550 Chestnut Ridge Road, Orchard Park, New York [hereafter, Chestnut Ridge], and 51 Idlewood Drive, Orchard Park, New York [hereafter, Idlewood]. In 2017, because of various medical issues, decedent was hospitalized more than once, and he was discharged to a Fox Run facility for rehabilitation and/or assisted living. In August of 2017, decedent was readmitted to the Veteran’s Hospital, where he died.It is not disputed that decedent was the sole owner of the Chestnut Ridge property, which he sold on July 30, 2015. Prior to that, Robert and Janis had purchased the Idlewood property on February 5, 2013, as joint tenants with rights of survivorship. Although Idlewood was initially titled jointly to decedent and Janis, on September 14, 2015, Idlewood was conveyed to Janis alone, with a life estate reserved to decedent.In early 2017, decedent and Janis looked into buying a residential unit at Fox Run and a down payment was made for the unit. To complete that purchase, the Idlewood property was sold, with the closing occurring on July 13, 2017. Janis subsequently tendered a check to decedent on August 21, 2017 (the day before he died) for the alleged actuarial value of his life estate.Janis finalized the purchase of the Fox Run residential unit, on which decedent had made the initial $25,000 deposit. Decedent and Janis also had a joint account at the Great Erie Federal Credit Union, and the estate alleges that there are transactions in decedent’s separate credit union account about which Janis may have information.The estate now seeks to make inquiry of Janis about (1) the sale of the Chestnut Ridge property in 2015, (2) the acquisition of, and improvements made to, the Idlewood property, (3) the sale of the Idlewood property and the disposition of the sale proceeds, (4) the purchase of the Fox Run residence, (5) transactions in the referenced two credit union accounts from July, 2014 through August 22, 2017, (6) the alleged change in beneficiary of a life insurance policy [supposedly, Ameritas Insurance Policy No. AG00069402], and (7) “the amount and whereabouts of the proceeds of said [policy] paid over to [Janis]“.(B)In moving against the estate’s SCPA 2103 proceeding, Janis sets up three grounds for dismissal, each of which will be considered separately.(i)CPLR 3211 (a)(5)Janis contends that the statute of limitations bars any inquiry into the sale of the Chestnut Ridge property. This is so, Janis argues, because a 2103 proceeding is in the nature of conversion or replevin, as to which a three year statute of limitations applies. Janis contends that, because the estate’s petition was not initiated until September, 2018, inquiry into the Chestnut Ridge property sale falls outside the three year period and cannot be permitted. For its part, the estate says that it wants to trace back to its inception the source of the money it alleges may have been used to improve the Idlewood property1 so that, in the estate’s view, decedent’s estate may receive its “fair share” of the subsequent Idlewood sale proceeds.In Matter of Asch, 164 AD3d 787 [2018], the Appellate Division, Second Department, explained the applicable legal principles this way:“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the movant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In this regard, the movant must establish, inter alia, when the cause of action accrued (see Rodeo Family Enters., LLC v. Matte, 99 AD3d 781, 783-784; Swift v. New York Med. Coll., 25 AD3d 686, 687; Gravel v. Cicola, 297 AD2d 620, 620-621). A discovery proceeding pursuant to SCPA article 21 has been likened to an action for conversion or replevin and a three-year statute of limitations has been applied (see Matter of Chung Li, 95 AD3d 881, 881; Matter of King, 305 AD2d 683, 683; CPLR 214[3]). A conversion cause of action accrues and the limitations period begins to run on the date the conversion allegedly occurred (see Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44, 637 N.Y.S.2d 342; Matter of Rausman, 50 AD3d 909, 910). ‘Where possession is originally lawful, a conversion does not occur until the owner makes a demand for the return of the property and the person in possession of the property refuses to return it’ (Matter of Rausman, 50 AD3d at 910, quoting Matter of King, 305 AD2d at 683).”The first issue is the date when this 2103 proceeding was commenced. Janis fixes the date as September 11, 2018, when process — the order to show cause — was issued by this Court. The estate does not address the matter.SCPA 301 provides that, for statute of limitations purposes, “a proceeding is commenced upon the filing of a petition”, as long as process is issued and served within 120 days after the filing date. However, where (as here) a petition is e-filed, the Uniform Rules for Surrogate’s Courts (22 NYCRR) §207.4-a (e)(1) and (3), insofar as relevant here, provide as follows:“An eligible proceeding may be commenced by filing the initial documents electronically….***Documents may be transmitted at any time to NYSCEF ['New York State Courts Electronic Filing System'] and will be deemed filed when transmission to NYSCEF is complete and payment of any court filing fee due is received by the court” (emphasis added).In this proceeding, the estate e-filed its petition on August 22, 2018. However, the estate’s check for the required filing fee (see SCPA 2402 [8][a]) was not received until August 29, 2018.Thus, I find that the date this discovery proceeding was commenced is August 29, 2018.I conclude, therefore, that the July 30, 2015 sale of the Chestnut Ridge property falls outside the statute of limitations, and thus inquiry into it is precluded.Similarly, any inquiry by the estate into anything which occurred more than three years prior to the commencement of this proceeding on August 29, 2018, is statute-barred, whether such an inquiry would be directed towards real estate issues, credit union account issues, or otherwise.(ii)CPLR 3211 (a)(1)Janis contends that inquiry about the specified insurance policy should be precluded based upon documentary evidence. Janis’ opposing affidavit points out that the Ameritas policy number in the estate’s papers is not one ever owned by her or decedent2.She does, however, acknowledge that she and decedent had Ameritas policies on each other’s lives, and it is those two policies to which her documentary proof is directed.Janis asserts that, with respect to the Ameritas policy on her life on which decedent was the beneficiary, there was no change in the policy beneficiary until after decedent’s death. With respect to the Ameritas policy on decedent’s life on which she was the beneficiary, the document submitted by her from Ameritas, dated October 1, 2018, shows that Janis had been the named “beneficiary from 12/20/2002 to present”.Inasmuch as the estate has made no argument or other showing why inquiry about the Ameritas policies should not be precluded, the motion to dismiss as to those policies must be granted.(iii)CPLR 3211 (a)(7)It is not entirely clear what area(s) for inquiry fall within the “failure to state a cause of action” rubric of CPLR 3211 (a)(7) asserted by Janis. Instead, Janis relies on the more general argument that the estate has “failed to demonstrate the existence of any specific personal property or money which belongs to the estate” (Matter of Castaldo, 180 AD2d 421, 421 [1992]) to undergird her 3211 (a)(7) argument.With respect to the estate’s request to inquire about decedent’s separate credit union account, there is no basis to require Janis to respond in any way. The estate has full control over that account, and there is nothing in the papers which even colorably suggests that Janis had access to it. The fact that certain checks were drawn on the account for which the estate “can find no explanation” does not warrant compelling Janis to undergo questioning.Moreover, the assertion by the estate in its petition that it has no explanation for the six checks at issue in decedent’s separate account is dubious at best and verges on the disingenuous. Two checks were written to “Hand-Knot Construction” [$2,185.90 total], “APR Construction” [$10,000.00 total], “M. Partill Plumbing” [$950.00], and “Fox Run” [$25,000.00]. Additionally, there are memo notations on each check indicating the purpose for each payment ["kitchen floor", "new roof", "2 new doors/garage", "new water tank", and "deposit 2016"].With respect specifically to the Fox Run issue, it is absolutely clear that decedent made the initial $25,000 down payment on the unit. That ends the deposit issue.There may well be an issue about whether the estate is entitled to receive some, all or any part of the $25,000 deposit amount back inasmuch as decedent died before residing in the Fox Run unit being purchased, but that is quite a separate issue which has nothing to do with questioning Janis about the deposit per se. If there is a factual and legal basis to recover the deposit for the estate, such as paragraphs 22 and 23 of the December 4, 2018 affidavit of Kristen and Sandra allege, that is a matter for an SCPA phase 2 hearing on the merits regarding asset ownership — the turnover phase — rather than a phase 1 inquisitorial hearing.With respect to the joint bank account owned by decedent and Janis, there is a basis for inquiry about it by the estate, subject to the statute of limitations. And, additionally, there may be a basis for questioning Janis about the calculation of the $26,048.89 check sent by counsel to decedent on August 21, 2017, which purported to represent his “life estate interest in 51 Idlewood Drive…calculated based on Table S issued by the IRS. Your interest is calculated based on your age of 75 at the time of sale. The percentage is .19077 percent for your life estate interest.” If the estate advances some legal basis for calculating decedent’s life estate interest differently, questioning could then be permitted along such lines.(C)Accordingly, I hereby grant the pre-answer motion to dismiss to the extent indicated herein, and I deny it in all other respects.Finally, I direct that counsel shall appear before the undersigned on Wednesday, March 20, 2019, at 9:30 a.m., to schedule whatever hearing may now be required (which shall take place before the Chief Attorney of this court), and to take up any other matter that may then be required.Dated: February 27, 2019Buffalo, New York
