The following papers were considered in this motion: PAPERS NUMBERED Petitioner’s Notice of Motion and Affirmation in Support 1, 2 Objectant’s Attorney Affirmation in Opposition 3 Petitioner’s Reply Affirmation 4 DECISION In this contested miscellaneous proceeding, the American Cancer Society, Inc. (the petitioner) seeks the appointment of a temporary receiver of the property located at 2239 Vanderveer Place, Brooklyn, NY (the property), on the ground that Tricien Ashby (the objectant), the possessor of a life tenancy in the property, has been negligent in safeguarding the property against foreclosure and waste. The petition also seeks a compulsory accounting from the objectant, pursuant to SCPA 2201. The objectant has filed an answer alleging that this court lacks subject matter jurisdiction over the matter, citing this court’s prior decision of February 6, 2014. The petitioner now seeks dismissal of the objections and for summary judgment granting the relief requested in the petition. For the reasons stated below, the objectant’s motion is denied and the petition is dismissed as this court lacks subject matter jurisdiction over the dispute. Background Joycelyn Ashby Escobar (the decedent) died on February 29, 2000. Her will was admitted to probate and letters testamentary issued to executor Victor Olmo. The will left a joint life estate in the property to the decedent’s sister Elsie Springer and nephew, the objectant herein, on the condition that they live in the property until their respective deaths. Upon the death of both, the property is to be sold and the proceeds divided between the petitioner and United Negro College Fund (UNCF). Elsie post-deceased the decedent on March 16, 2002. The executor then conveyed the property by deed, dated on September 17, 2003, to the objectant as life tenant with remainder to the petitioner and UNCF in equal parts. In a prior proceeding, the petitioner filed a petitioner to declare that the objectant’s life estate had terminated since he no longer resided at the property and thus, the petitioner and UNCF are entitled to possession. The petitioner further asserted that the objectant had been collecting rents on the property, but failing to pay property taxes and utilities, and barely escaped a tax foreclosure on the property. This court issued a decision dated February 6, 2014 dismissing the petition since the property had been transferred, the controversy in no way affects the affairs of the decedent or the administration of her estate, but rather was a dispute between living parties. Matter of Escobar, File No. 2001-3280/A, 2014 NYLJ LEXIS 5620 (Sur. Ct. Kings County, Feb. 6, 2014). In that decision, the court held as follows: Here, the will clearly states that the life tenant must live in the house until his death as such…the matter in controversy relates to the determination of whether the life tenant has repudiated his obligation on property which was deeded to him as a life tenant and whether he has abandoned the property resulting in the remainder beneficiaries being entitled to possession thereof. This controversy in no way affects the affairs of the decedent or the administration of her estate. Rather, it relates to an independent matter involving a controversy between living parties or entities. The petition asserts that the life estate has been terminated; notably, the petition does not assert that the termination results in the property reverting to the estate or that the estate is entitled to any portion thereof or that the Surrogate’s Court will be required to determine how this property will be distributed. On the contrary, the petition asserts that upon the termination of the life estate possession of the property must go to the remainder beneficiaries, not to the estate. The property clearly passed from the estate to the life tenant and the termination of the life estate will not reestablish jurisdiction in the Surrogate’s Court. The instant petition essentially sets forth the same facts, to wit, that the objectant no longer resides at the property and has allowed the property taxes to fall in arrears again. The petitioner does not request a declaration that the petitioner has forfeited his life tenancy under the decedent’s will, as in the prior petition. Rather, the instant petition requests the appointment of a temporary receiver to safeguard the property for the remainder beneficiaries and an accounting from the objectant. Discussion “[A] court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when attention is called to the facts, refuse to proceed further and dismiss the action.” Matter of Fry v. Village of Tarrytown, 89 NY2d 714, 718 (1997), quoting Robinson v. Oceanic Steam Nav. Co., 112 NY 315, 324 (1889). The Surrogate’s Court’s jurisdiction is broad and encompasses all matters that relate to the affairs of the decedent or the administration of her estate. See SCPA 201(3); In re Estate of Piccione, 57 NY2d 278, 291 (1982). However, the court’s jurisdiction is not unlimited, and the matter in controversy must be connected, in some way, to an unresolved issue concerning the decedent’s estate. Matter of Lainez, 79 A.D.2d 78, 80 (2d Dep’t 1981); Matter of O’Connell, 98 A.D.3d 673, 674 (2d Dep’t 2012). Otherwise, the dispute is one amongst living parties, over which the court lacks subject matter jurisdiction. Id. This court held in its prior decision that it lacks subject matter jurisdiction over the controversy between the petitioner and objectant, as it is a dispute solely between living parties. Escobar, supra. The petitioner sought reargument of the court’s prior decision, which was denied. Although the petitioner filed a notice of appeal, it never perfected the appeal. The relief sought in this proceeding is framed slightly differently from the prior proceeding. However, the allegations remain essentially the same, to wit, that the objectant has forfeited his life tenancy by moving to Florida and has allowed taxes to fall into arrears. The petitioner’s return to this court, five years after dismissal of its initial petition, to seek further relief with respect to the property, is perplexing. While the relief sought is different in form, it does not alter the court’s conclusion that any controversy between the parties is a dispute solely between living parties, as it lacks connection to the decedent’s estate. Accordingly, it would appear that the petitioner is seeking the same relief despite the court’s prior decision.1 Escobar, 2014 NYLJ LEXIS 5620 at *4. Moreover, the petitioner is barred by the doctrine of res judicata in bringing claims for relief in this court, based upon the same facts asserted in a prior proceeding, even if the relief sought is slightly different. See O’Brien v. Syracuse, 54 N.Y.2d 353, 357 (1981) (“once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy”); Smith v. Russell Sage College, 54 N.Y.2d 185, 192-193 (1981) (same). Petitioner’s request for a temporary receivership and a compulsory accounting were forms of relief that could have been sought in the prior proceeding. Petitioner cannot now seek different relief based upon the same facts, when the prior proceeding was dismissed and petitioner failed to seek relief by appeal or in another venue that would have had subject matter jurisdiction over the matter. Conclusion Accordingly, the petitioner’s motion to dismiss the objections and to grant summary judgment in favor of the petitioner is denied. The court, sua sponte, dismisses the petition as the court lacks subject matter jurisdiction over the matter. Matter of Fry at 718; SCPA 201(3). All other arguments were considered and found unavailing or moot. This constitutes the decision of the Court. Dated: October 8, 2019 Brooklyn, New York
