Surrogate Nelida Malave-Gonzalez
Executor sought to direct respondent to deliver certain property or pay its value to the estate. Decedent allegedly gave the law firm respondent the property during its representation of him in a California action. The California court directed the property be held in escrow by decedent's former attorney to preserve it as evidence and ensure no spoliation pending a decision of the California suit. This court noted an action may be dismissed where there was another pending action between the same parties in another state or federal action under CPLR 3211(a)(4). Respondents alleged the same issues in this action were raised in the prior, pending California suit, and there was an existing order of the California court directing the property remain in California pending final determination of that action. The court noted as executor's counsel was given an opportunity to file papers in response to such contention, but failed to do so, the uncontested allegations contained in the filed objections, with the supporting papers—that there was a prior action pending for the same or similar relief—were deemed proof of such contentions under Surrogate's Court Procedure Act §509. Thus, it concluded this action must be dismissed due to the existence of a prior pending suit.
