New York CountyFirst DepartmentSUPREME COURTJustice Nancy M. BannonC. Louise Hepworth v. Hepworth (651730/14)—See DecisionJustice Andrew BorrokPk4 Media, Inc. v. Fresh Digital Group (652954/18)—Case DisposedPremium Assignment Corp. v. Znko Const. Inc. (652084/18)—See DecisionJustice Eileen BranstenClc Owners LLC v. Stillman Dev. (656662/17)—See DecisionPortigon Ag (f/k/a Westlb v. Opportunity Finance (651954/18)—See DecisionSedona Resorts v. Belmont Mgt. Co. (654114/15)—See DecisionJustice David CohenColonial Funding Network, Inc. v. Dk Hayden Construction (656439/16)—See DecisionEinheber v. Samel (160132/17)—Case DisposedLanger v. Leader Electric Co., Inc. (652962/16)—See DecisionAdler v. Molner (154462/17)—See DecisionSellers v. Nesctc Security Agency (156182/16)—See DecisionArias v. Fives 160th LLC (159892/17)—See DecisionBeltre-Matos v. Terminated 49th B’way. (154234/16)—Case DisposedComm’rs. of The State v. Bpgl Hldgs. LLC (452321/15)—See DecisionJones v. Bsrep Ua Heritage (157106/18)—See DecisionNolasco v. Sun of May (155645/16)—See DecisionHiscox Ins. Co. Inc. v. Kopach (155196/18)—See DecisionMitchell v. Fulbrook Capital Mgt. (656435/16)—See DecisionNY Times Digital v. Neutrino Media Group LLC (654720/17)—See DecisionJustice James D’AugusteAcacia Network Housing, Inc. v. 2153 5th Avenue (154602/18)—See DecisionAcacia Network Housing, Inc. v. 2153 5th Ave. (154602/18)—See DecisionNYC v. Land And Bldg. Known (450305/18)—Case DisposedNYC v. Land And Bldg. Known (450926/18)—Case DisposedJustice Carol R. EdmeadMintz v. Board of Elections of The (157145/18)—Case DisposedJustice Kathryn E FreedLifton v. NYCTA (154984/16)—See DecisionCruz v. Metro. NYCTA (157923/13)—See DecisionHennessey v. Union Club of The City of (153770/17)—See DecisionNagler v. Walgreen Eastern Co., Inc. (154522/17)—See DecisionStupart v. NYCTA (154547/15)—See DecisionMerchant Cash And Capital v. Julia Knit, Inc. (158975/17)—Case DisposedVanallen v. Michael Kors Stores LLC (159166/15)—See Decision1374 Third Ave. Inc. v. NYC (153928/17)—See Decision278 W 127 Prop LLC v. Gordon (153369/16)—See DecisionGoldberg v. Machester Mgt. (155950/17)—See DecisionLemache v. Mip One Wall St. (158212/16)—See DecisionMartinez v. Kaw Nylo Nyack (160946/15)—See DecisionSt-Cyr Jr v. NYCTA (451113/16)—See DecisionEema Industries Inc. v. Clarity Lighting Technologies (150775/17)—Case DisposedBorough of Manhattan v. X (580001/16)—See DecisionCountry-Wide Ins. Co. v. Brissette (158400/17)—See DecisionGreenberg v. Cipriani 42nd St. (158838/17)—See DecisionMiral, Inc. v. Kovac Media Group, Inc. (159320/16)—See DecisionSunbelt Rentals, Inc. v. Franchise Contractors (155323/17)—See DecisionTheso Corp. v. Metro. Transportation (153161/14)—See DecisionFareri v. New York-Presbyterian (157969/15)—Motion WithdrawnNautilus Capital LLC v. 5th St. Parking LLC And (850015/17)—Order To Show Cause RefusedJustice Barbara JaffeLonigro v. Wfp Tower B Co. L.P. (152232/15)—See DecisionDoe v. New School Univ. D/b/a (153069/18)—See DecisionJeffrey Deskovic v. NYC Police (155001/17)—See DecisionSteam Pipe Explosion At 41st v. Con Ed (768000/08)—See DecisionWilson Evans 50th LLC v. 936 Second Ave. L.P. (156514/18)—See DecisionJustice Debra JamesLin v. Nova Casualty Co. (151865/14)—See DecisionJustice Robert KalishBoard of Mgrs. of The v. Hsieh (150383/16)—See DecisionLeonard v. Nat. City Bank N/k/a Pnc (151492/18)—See DecisionSills Cummis & Gross P.C. v. Cohen (154938/18)—Case DisposedJustice Lynn KotlerMauriello v. Battery Park City Auth. (160687/14)—See DecisionMedley v. Banks (450664/18)—See DecisionJustice Andrea MasleyOffshore Brazil II Hotel v. Gp Investments (653457/18)—See DecisionJustice Manuel J. MendezCiprut v. A.O. Smith Water Prods. Inc. (190370/15)—Motion WithdrawnNationstar Mortgage LLC v. Slavutsky (850164/15)—Order To Show Cause RefusedJustice Charles E. RamosMiura Golf Lp v. Irving Golf, Inc. F/k/a (652584/18)—Motion WithdrawnJustice Saliann ScarpullaLilis Energy, Inc. v. Short (653547/18)—See DecisionYu v. Guard Hill Estates (656535/16)—See DecisionVnb NY v. Paskesz (652149/17)—See DecisionJustice George J. SilverHindery v. Boachie-Adjei (805359/14)—See DecisionJustice Silvera, Adam (dcm)Rodriguez v. Coote (151525/14)—See DecisionWeir v. American Transit (100805/17)—See DecisionJustice Lisa Ann SokoloffNYCTA v. Precision Concrete Pumping (450469/17)—Motion WithdrawnJustice Carmen St. GeorgeCaraballo v. Police Dept License Div. (101716/17)—Case DisposedGil v. NYC Dept of Housing (100419/18)—Case DisposedMartinez v. NYC Police (100124/18)—Case DisposedOrtiz v. NYCHA (100090/18)—Case DisposedSmith v. NYC Dept. Homeless Services (100244/18)—Case DisposedSpink USA v. Gary Hendershott (655281/17)—See DecisionJustice A. TischKomatsu v. NYC (100054/17)—Order To Show Cause RefusedJustice Lillian WanLaboratory Corp. of v. Prime Tri State LLC D/b/a (156599/18)—See DecisionSurrogate’s CourtCases released on:August 20, 2018Surrogate MellaESTATE OF BARBARA WEIDEN SCHWARTZ FISCHLER, Deceased (11/2968/K) — The proceeding commenced by Russell W. Rosen and Steven F. Schwartz, successor temporary co-administrators of the estate of Barbara Weiden Schwartz Fischler, vis a vis Burton M. Fischler, in his former capacity as decedent’s limited attorney-in-fact – to the extent not disposed of by a June 29, 2015 decision of this court – has been discontinued with prejudice pursuant to a stipulation filed on July 20, 2018 (see CPLR 3217 [a] [2]).Proceed accordingly.Dated: August 20, 2018ESTATE OF JAMES F. GRIFFIN, Deceased (11/1994/H) — The petition filed by Bernard Sherman, to resign as co-executor of the Will of James F. Griffin, which had been held in abeyance pending further Order of the court, has now been discontinued pursuant to a Stipulation of Discontinuance filed with the court (see CPLR 3217 [a][2] and §207.24 of the Uniform Rules for Surrogate’s Court).Proceed accordingly.Date: August 20, 2018.ESTATE OF D.S., Deceased (17/2155) — A hearing in this proceeding for the guardianship of D.S., pursuant to Article 17-A of the Surrogate’s Court Procedure Act (SCPA), was held on June 27, 2018. Since D.S. currently resides at a facility licensed by the New York State Office of People with Developmental Disabilities, he was represented in this proceeding by Mental Hygiene Legal Service (MHLS) in accordance with SCPA 1753(2)(b) and 1754(1), MHL 47.01 and 47.03, and 22 NYCRR 823.2. MHLS, while concurring that D.S. was currently in need of a guardian, and agreeing that petitioners, D.S.’s parents, were suitable to act as such guardians, nonetheless expressed concerns that D.S. may, in the future, acquire sufficient skills to make the appointment of a plenary guardian unnecessary, and requested that the court direct petitioners to submit periodic reports addressing D.S.’s abilities.On the record, at the conclusion of the June 27, 2018 hearing, the court found that it was in the best interests of D.S. to appoint petitioners as co-guardians of his person, pursuant to Article 17-A of the SCPA. That is, the court was persuaded that D.S. is a person with a developmental disability and convinced that petitioners are capable of promoting the best interests of D.S. (Matter of Nicholas L, NYLJ 1202644557981, *1 [Sur Ct, Suffolk County 2014]) and qualified and suitable to serve in that important fiduciary capacity (see In re Guardianship of Darius Ignatius M, 202 AD2d 1 [1st Dept 1994]).As is customary in the New York County Surrogate’s Court, petitioners were directed to file an annual report with the court providing information about the status of the person under a developmental disability (see Matter of Mark C.H., 28 Misc 3d 765 [Sur Ct, New York County 2010]). The court has invited MHLS in this case to submit questions that the court may consider adding to the questionnaire that is regularly sent to the guardians for purposes of providing the annual report. With the input from MHLS, the questionnaire will be amended so that the annual report addresses D.S.’s functional capacity and his ability to make decisions.Petitioners shall serve a copy of the report on MHLS at the same time it is filed with the court every year.Decree signed. Clerk to notify the parties.Dated: August 20, 2018ESTATE OF BARBARA WEIDEN SCHWARTZ FISCHLER, Deceased (11/2968/L) — The proceeding commenced by Burton M. Fischler, for approval of his record as decedent’s limited attorney-in-fact (see General Obligations Law §5-1510 [2] [e]), has been discontinued with prejudice pursuant to a stipulation filed on July 20, 2018 (see CPLR 3217 [a] [2]).Proceed accordingly.Dated: August 20, 2018ESTATE OF BARBARA WEIDEN SCHWARTZ FISCHLER, Deceased (11/2968/N) — The proceeding commenced by Burton M. Fischler – including the motion to dismiss or to deny the petition – to compel an accounting by Steven F. Schwartz and Russell W. Rosen, successor temporary co-administrators of the estate of Barbara Weiden Schwartz Fischler, has been discontinued with prejudice pursuant to a stipulation filed on July 20, 2018 (see CPLR 3217 [a] [2]).Proceed accordingly.Dated: August 20, 2018ESTATE OF HYMAN ALPERT, Deceased (75/4515) — The court considered the following submissions in determining the motion of Daniel Miller, executor of the will of Ruth Alpert, to be substituted for Ruth Alpert in various accounting proceedings relating to the estate of Hyman Alpert:Document: Date Filed:1. Amended Notice of Motion May 17, 20182. Affidavit of Daniel Miller in support of motion May 16, 2018At the call of the May 25, 2018 calendar, the court granted the motion of Daniel Miller, executor of the will of Ruth Alpert, to be substituted for Ruth Alpert in proceedings to settle the accounts of the original – and successor – executors of, and trustees of the marital and residuary trusts under, the will of Hyman Alpert (who died on May 12, 1975) – to the extent Ruth Alpert actually appeared in such proceedings.This decision, together with a transcript of the May 25, 2018 proceedings, constitutes the order of the court.Dated: August 20, 2018Surrogate AndersonESTATE OF BORYS KOGAN, Deceased (18/818) — Borys Kogan died intestate on October 5, 2017, a citizen and domiciliary of the Ukraine. Decedent’s alleged surviving spouse, also a non-domiciliary alien, petitions jointly with a New York lawyer for letters of administration pursuant to SCPA §707 [1][c]. One of decedent’s daughters objects to the petition, challenging the validity of petitioner’s marriage to decedent or, alternatively, alleging that the petitioning spouse is ineligible to receive letters because she abandoned decedent. Objectant asks the court to deny the petition and grant letters to her or to the Public Administrator.The co-petitioners have presented a Ukranian marriage certificate which constitutes prima facie evidence that co- petitioner is decedent’s surviving spouse. However, the parties have not yet provided the court with sufficient information to determine whether the daughter’s objection is valid. By statute, * a qualified surviving spouse is given preference over a daughter for letters of administration (SCPA 1001). However, if for any cause a delay occurs in the grant of letters on the estate of a decedent, the court in its discretion may grant letters of temporary administration (SCPA 901[1]). Here, the issuance of full letters will be delayed until the court determines the daughter’s challenge to the validity of the marriage or her claim of abandonment.Co-petitioners’ papers demonstrate a compelling need for the immediate appointment of a fiduciary in order to address certain tax issues and to pursue their claim that certain real property which is currently titled to a trust for the benefit of the daughter is actually an estate asset. Accordingly, the court, in its discretion, determines that co-petitioners are entitled to temporary letters of administration.Settle order directing the issuance of letters of temporary administration to co-petitioners.Dated: August 20, 2018Cases released on:August 16, 2018Surrogate AndersonESTATE OF GERALD W. ARTHUR A/K/A GERALD ARTHUR, Deceased (12/3948/F) — Before the court are two contested motions filed incident to a turnover proceeding initiated by the temporary administrator against the trustee of decedent’s inter vivos trust seeking the transfer of decedent’s town house out of a trust and into decedent’s estate.In the first motion, the trustee and the temporary administrator (the “fiduciaries”), seek to vacate a notice of pendency filed on August 31, 2015, by two individuals claiming ownership of decedent’s townhouse : one as beneficiary of a constructive trust and/or common law spouse; the other as decedent’s first cousin once removed/putative sole distributee (“claimants”). In the second motion claimants oppose vacatur and seek an order extending the term of the notice for an additional three years.The grounds upon which the fiduciaries seek to vacate the notice of pendency are twofold. First, they argue that the claimants lack standing to seek relief in the turnover proceeding. The claimants counter that, as parties claiming ownership of the townhouse, they are interested in the proceeding to determine whether the town house is a trust asset or an asset of the estate.The fiduciaries are hard pressed to argue that the claimants have no interest in the turnover proceeding. Ironically, the fiduciaries’ own conduct provided the claimants with the requisite interest when they asked the court to so order a stipulation that purported to settle the turnover dispute by extinguishing the claimants’ ownership claims even though they were not parties to the agreement. Accordingly, the claimants have standing to participate in the turnover proceeding which may affect their ownership interests.The fiduciaries’ second ground for vacatur is sound. They contend that, after the claimants filed the first notice of pendency in 2012 on the subject property, the subsequent filing of the 2015 notice violated the statutory prohibition against filing successive notices of pendency (see, CPLR 6516 [c]).The 2012 notice of pendency was filed by the claimants asserting their claims of ownership against the same property in an action in the Supreme Court, New York County. That action was transferred here with the 2012 notice of pendency intact. However, the claimants allowed it to expire (CPLR 6513).The fiduciaries argue that after the claimants allowed the 2012 notice to expire, they made a transparent attempt to avoid the prohibition against successive filings by filing a subsequent notice of pendency in the turnover proceeding.DiscussionThe purpose of a notice of pendency is to give constructive notice to a purchaser from any defendant named in the notice that there is a competing claim to ownership of the subject property ( CPLR 6501). Because of the ease with which it can be used and the powerful effect it has on the alienability of property without prior judicial review, the right to file such notice is considered an extraordinary privilege which demands strict compliance with the requirements of Article 65 of the CPLR (see Matter of Sakow, 97 NY2d 436[2002]; Israelson v. Bradley, 308 NY 511 [1955]; Old World Custom Homes, Inc. v. Crane, 33 AD3d 600 [2006].An extension of the three year term of a notice of pendency must be obtained prior to expiration of the three year period and upon a showing of good cause (CPLR 6513). This has been held to be an exacting rule (see, Matter of Sakow, 97 NY2d 436[2002].With the one exception of a foreclosure action, CPLR 6516 (c) prohibits filing a notice of pendency in any action in which a previously filed notice of pendency affecting the same property had been previously cancelled, vacated, or had expired. Thus, the court is powerless to permit the filing of successive notices where a prior lapse has occurred. (see, Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 6513). This provision, known as the “no second chance” rule, coupled with the strict requirement that renewal must be obtained before the three year term expires, evinces a legislative policy of minimizing the longevity of clouds on title (Matter of Sakow, 97 NY 2d 436). If the terms of the statute are not met, the privilege has ended and a further grant of power to file a new notice for the same cause must be denied (Israelson v. Bradley, 308 NY 511, 515-516).When the ownership issues raised by the claimants in their Supreme Court complaint were referred to this court, their unexpired 2012 notice of pendency continued here. The claimants had the opportunity and responsibility to timely extend its term (Old World Custom Homes, Inc. v. Crane, 33 AD3d 600 [2006]). Their attempt to obfuscate the issues by filing the successive notice of pendency in a different estate proceeding is unavailing. Whether the turnover proceeding, although in the same estate as, and related to, the transferred action, is in essence a separate proceeding, is not the proper focus here. The question here, where the claimants, property, and controversy are the same, is whether the filing in 2015 “evinced an attempt to abuse the privilege of filing a notice of pendency” (Tavitan v. Tavitan, 83 AD3d 1045,1046 (holding that the no second chance rule applied in a subsequent action; Deutsch v. Grunwald, 63 AD3d 872 [2009]; Old World Custom Homes, Inc v. Crane, 33 AD3d 600 [2006]).In this instance, the filing of the 2015 notice of pendency “evinced an attempt to abuse the privilege of filing a notice of pendency” (Tavitan v. Tavitan, 83 AD3d at 1046; Weiner v. Mkvii-Westchester, 292 AD2d 597 [2002]). To allow the filing of the subsequent notice of pendency by the same parties against the same property in the same estate “renders the time limit in CPLR 6513 useless and undercuts an important incentive for diligent practice” (Matter of Sakow supra, at 443).Accordingly, the fiduciaries’ motion to vacate the subsequent notice of pendency is granted. Claimants’ application for an extension is therefore rendered moot, and it isORDERED that the notice of pendency filed with the New York County Clerk on August 31, 2015 is hereby vacated.Dated: August 16, 2018
