Papers Considered: 1) Respondent’s Notice of Motion to Dismiss dated April 9, 2021; 9 2) Affidavit of Paul Littman dated April 2, 2021, with exhibit; 3) Attorney Affirmation of Jay A. Organek, Esq. dated April 2, 2021, with exhibits; 4) Memorandum of Law in Support of Motion to Dismiss dated April 2, 2021; 5) Affidavit of Chris Massaroni, Esq. in Opposition to the Motion to Dismiss Filed by Respondent Paul W. Littman dated May 19, 2021, with exhibits; 6) Petitioner’s Memorandum of Law in Opposition to Respondent Paul Littman’s Motion to Dismiss dated May 19, 2021; and 7) Attorney Affirmation in Further Support of Respondent’s Motion to Dismiss dated May 26, 2021. DECISION AND ORDER Howard Littman (hereinafter decedent) died on March 27, 2020, survived by his wife Arline Littman, his son Paul Littman (hereinafter respondent) and his daughter Susan Littman (hereinafter petitioner). A proceeding for probate of decedent’s will was commenced in July 2020 by respondent, who petitioned to be appointed as executor and as testamentary trustee of the disclaimer trust under the will. Petitioner appeared in the probate proceeding and contests his appointment.1 Thereafter, petitioner commenced this discovery proceeding pursuant to SCPA 2103 wherein she alleges, among other things, that on February 7, 2020 respondent “induced” decedent to issue him a check in the amount of $475,000 from a joint checking account belonging to decedent and his wife, Arline, and “caused multiple other improper transfers and payments to himself from Decedent’s accounts…[and] removed and transferred to himself certain items of property located at his father’s residence and summer home.” Jurisdiction has been obtained over all necessary parties. A guardian ad litem was appointed by the Court for decedent’s wife, who is the subject of a MHL Article 81 guardianship proceeding commenced in Albany County Supreme Court after the commencement of this proceeding. Respondent now moves to dismiss the discovery proceeding in lieu of an answer pursuant to CPLR 404, 3211 (a) (1), 3211 (a) (4) and 3211 (a) (7). Petitioner opposes the motion, and the motion has been submitted for decision. “Dismissal is warranted [on a motion to dismiss pursuant to CPLR 3211 (a) (1)] only if the documentary evidence ‘establishes a defense to the asserted claims as a matter of law’” (Kolchins v. Evolution Mkts., Inc., 31 NY3d 100, 106 [2018], quoting Leon v. Martinez, 84 NY2d 83, 88 [1994]; see Koziatek v. SJB Dev. Inc., 172 AD3d 1486, 1486 [3d Dept 2019]). “‘To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity’” (Koziatek, 172 AD3d at 1486, quoting Calhoun v. Midrox Ins. Co., 165 AD3d 1450, 1450 [3d Dept 2018]). Respondent relies on an Order on Consent entered in the MHL Article 81 proceeding dated January 29, 2021, as well as the orders of this Court dated December 23, 2020 and March 2, 2021, as documentary evidence of his defense to this proceeding. Respondent contends that the orders establish that respondent returned $478,630.21 to Arline’s guardian ad litem (hereafter GAL), William J. Keniry, Esq., which is the full amount plus interest sought by petitioner in her prayer for relief, thereby rendering this discovery proceeding moot (see CPLR 3211 [a] [1]). Respondent further avers that petitioner’s remaining contentions are nothing more than a fishing expedition and without merit. Attached as an exhibit to Attorney Jay Organek’s supporting affirmation is a copy of this Court’s order dated December 23, 2020 stating that respondent conveyed to GAL Keniry “the sum of $478,630.21 representing the transferred funds plus interest” and ordering, among other things, that the GAL hold the funds in an escrow account. Petitioner does not dispute that the monies were transferred to GAL Keniry to hold in escrow pursuant to this Court’s order. Furthermore, the parties agreed, and this Court’s order dated March 2, 2021 confirmed, that the GAL would transfer decedent’s wife’s undisputed half of the funds ($241,130.21) back to decedent’s wife, leaving the other half of the funds in the GAL’s escrow account. Petitioner argues that the discovery proceeding is not rendered moot by deposit of the funds in controversy into the escrow account because respondent still claims that he is entitled to the remaining half of the funds as an alleged gift made prior to decedent’s death and belonging to decedent at that time. Furthermore, respondent has not yet provided discovery or been deposed regarding any other allegedly improper transfers or removal of items from decedent’s estate. It is clear from the documentary evidence that the issue of whether the funds were transferred as a valid gift by decedent to respondent has not been resolved. Supreme Court’s Order on Consent in the Article 81 proceeding, at paragraph 5, states that respondent consents to the return of half of the funds in escrow to decedent’s wife’s account, on approval by this Court, and “waives any claim that this amount ($241,130.21) was a valid gift but retains his rights regarding the validity of the gift associated with all remaining funds held by Mr. Keniry (emphasis added).” The Court finds that the relinquishment by respondent of the funds into the GAL’s escrow account, ordered to be held in escrow pending determination of the ownership of the funds, does not render moot the discovery proceeding. Live controversies remain for the Court’s consideration, including the determination of the ownership of the remaining funds in escrow and any other assets which may be discovered in the context of this proceeding. The purpose of an SCPA 2103 proceeding is “‘an information-gathering vehicle for a fiduciary attempting to garner information as to potential estate assets’” (Matter of Fialkoff (Green), 45 Misc 3d 1205[A], *2 [Sur Ct, Queens County 2014], quoting Matter of Hendershot, 16 Misc 3d 1125[A], *2 [Sur Ct, Monroe County 2007]; see Matter of Mahoney, 62 Misc 3d 522, 527 [Sur Ct, Albany County 2018]). “The broad purpose of the statute allows the fiduciary to perform his or her duty to identify and marshal estate assets and effectuate their return” (id.). Here, in addition to seeking the return to the estate of the alleged gift by decedent to respondent, petitioner also seeks an order compelling respondent to return any other property of decedent’s estate in his possession or control and a scheduling order. Moreover, respondent challenges return to decedent’s estate of the funds remaining in escrow and maintains that he is entitled to the amount because decedent gifted the money to him prior to decedent’s death. Respondent’s challenge is an estate issue, because if there was not a valid gift, the amount in escrow belongs to decedent’s estate, not decedent’s wife as a joint tenant of the account. It is well settled that “[w]hen a joint tenancy is created in a bank account, the tenants are each permitted to withdraw their one-half interest in the account, regardless of who funded the account” (see Matter of Civiletto, 101 AD3d 1585, 1586 [4th Dept 2012]; Matter of Mullen, 268 AD2d 313, 314 [1st Dept 2000]; Matter of Giacalone, 143 AD2d 749, 749-750 [2d Dept 1988]). “Upon withdrawal of an excess over moiety, the withdrawing joint tenant becomes subject to suit for the excess and, as a result, the joint tenancy is terminated” (Matter of Mullen, 268 AD2d at 314; see Matter of Civiletto, 101 AD3d at 1586; Lopez v. Fenn, 90 AD3d 569, 572 [1st Dept 2011], lv dismissed 19 NY3d 1022 [2012]; Matter of Mahoney, 68 Misc 3d 1213[A], 2020 NY Slip Op 50925[U], *8 [Sur Ct, Albany County 2020]). Accordingly, regardless of decedent’s donative intent, the removal and transfer to respondent of more than decedent’s half of the joint bank account terminated the joint tenancy between decedent and Arline, and the Court must now determine whether the amount in excess of Arline’s one-half share was a gift to respondent or needs to be returned to decedent’s estate. Respondent next argues, in reliance upon CPLR 3211 (a) (4), that dismissal of the discovery proceeding is warranted because the Albany County Supreme Court, a court of concurrent jurisdiction, previously adjudicated return of the $475,000.00 as part of petitioner’s Article 81 guardianship proceeding. Petitioner posits in opposition to this aspect of respondent’s motion that CPLR 3211 (a) (4) is inapplicable because the two proceedings are not the same. “Under [CPLR 3211 (a) (4)], courts enjoy broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action” (D’Agostino v. Harding, 217 AD2d 835, 836 [3d Dept 1995]). “While it is unnecessary to show that both actions or proceedings pursue the same theories, the movant must prove that both suits arise out of the same actionable wrong and that there is no good reason why one action should not be sufficient to resolve the disputed issues” (Hinman, Straub, Pigors & Manning v. Broder, 89 AD2d 278, 280 [3d Dept 1982]; see LaBuda v. LaBuda, 174 AD3d 1013, 1014 [3d Dept 2019]; Wells v. Town of Lenox, 110 AD3d 1192, 1193 [3d Dept 2013]). The Court finds that the two proceedings are not sufficiently similar to warrant dismissal of the discovery proceeding. Petitioner does not seek within the guardianship proceeding to recover assets on behalf of the estate as she does in the discovery proceeding. Rather, she seeks within the guardianship proceeding the appointment of a guardian for Arline and the recovery of any property in respondent’s possession belonging to Arline. It is clear from the exhibits to this motion that Supreme Court did not determine whether the remaining amount in escrow was a valid gift to respondent from the decedent, and because of the moiety issue and termination of the joint tenancy before decedent’s death, decedent’s half of the funds removed would be owned by his estate if not a valid gift, not by the subject of the MHL Article 81 proceeding. Respondent further argues that the petition for discovery fails to state a cause of action pursuant to CPLR 3211 (a) (7). More specifically, respondent argues that none of the causes of action set forth a sufficient showing as required by SCPA 2103 that respondent is in possession of or withholding certain assets belonging to the Estate. “‘On a motion to dismiss pursuant to CPLR 3211 [(a) (7)], the pleading is to be afforded a liberal construction’” (Myers v. Schneiderman, 30 NY3d 1, 11 [2017], quoting Leon, 84 NY2d at 87-88; see Doe v. Bloomberg L.P., 36 NY3d 450, 454 [2021]). The court must “‘accept the facts as alleged in the [petition] as true, accord [petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’” (id., quoting Leon at 87-88; see Doe v. Bloomberg L.P., 36 NY3d at 454, quoting Aristy-Farer v. State of New York, 29 NY3d 501, 509 [2017]). Petitioner asserts that the allegations are sufficient at this inquisitorial stage of the proceeding to withstand a motion to dismiss pursuant to CPLR 3211 (a) (7). “The inquisitorial stage [of a discovery proceeding] ‘anticipates that [the] pleadings will be non-specific’…and the petitioner is not required to set forth allegations sufficient to sustain a cause of action but only those that justify an inquiry” (Fialkoff, 45 Misc 3d at *2, quoting Hendershot, 16 Misc 3d at *2 [internal citations omitted]). A petitioner “should be allowed the broadest latitude in deposing a respondent to obtain information to aid the fiduciary in administering the estate and determining whether recovery of assets should be pursued” (id., quoting Estate of Olive Waters, NYLJ, June 13, 2000 at 34, col 5 [Sur Ct, Westchester County]). The Court finds, after accepting the allegations in the petition as true and conferring to petitioner “every possible favorable inference,” that petitioner has set forth allegations sufficient to warrant an inquiry (Myers, 30 NY3d at 11; see Fialkoff, 45 Misc 3d at *2). Petitioner alleges, among other things, that decedent was “cognitively impaired” and “gravely ill” at the time that respondent “induced” decedent to issue him a check in the amount of $475,000.00 reducing decedent’s joint checking account balance to less than $60,000.00. Petitioner further alleges that respondent has “caused multiple other improper transfers and payments to himself from Decedent’s accounts,” “utilized his Power of Attorney for his father and mother to wrongly divert to himself assets and property of the Decedent,” “removed and transferred to himself certain items of property located at his father’s residence and summer home in order to divert such items to himself,” and “communicated with financial institutions and…instructed them not to provide certain information to [petitioner] or her counsel.” Finally, the Court has considered respondent’s motion to dismiss petitioner’s request for a preliminary injunction and denies the same because respondent consented to a resolution of the preliminary relief requested. Petitioner made a request for injunctive relief in the petition to prevent respondent from dissipating assets taken from decedent. More specifically, and as set forth in a proposed order to show cause attached to the petition, the scope of petitioner’s request for preliminary relief included directing respondent to “deposit the $475,000 he received from [decedent]…into a new bank account[,]…identify…the bank where the New Account is established” and preventing respondent from “making any deposits to the New Account [or] withdrawing, encumbering, hypothecating, or otherwise transferring any funds from the New Account.” On December 22, 2020, respondent conveyed to the GAL the sum of $478,630.21 “representing the transferred funds plus interest,” and the Court issued an order on December 23, 2020 directing the GAL to hold the funds in an escrow account and to refrain from disbursing the funds until further notice of the Court. No other requests for preliminary relief have been presented to the Court. Respondent having consented to and completed a transfer of the controverted funds into an escrow account maintained by the GAL and restricted by the Court, and Preliminary Letters Testamentary and Letters of Limited Administration with limitations having been issued, the Court finds that petitioner’s request for a preliminary injunction is resolved and concludes that respondent’s motion to dismiss the request must therefore be denied. Accordingly, it is hereby ORDERED that respondent’s motion to dismiss is denied in its entirety. This constitutes the decision and order of the Court. Dated and Entered: July 2, 2021
