Preview
FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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In the Matter of DERRICK TINGLE,
Petitioner,
Index No.
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules,
VERIFIED PETITION
-against-
SHARON PYSHER; KINGS COUNTY SURROGATE’S
COURT; SURROGATE BERNARD J. GRAHAM;
LISA MATHIS, CHIEF CLERK OF
THE KINGS COUNTY SURROGATE’S COURT;
KIM N. STEPHENS, DEPUTY CHIEF CLERK OF THE
KINGS COUNTY SURROGATE’S COURT; KINGS
COUNTY SURROGATE’S COURT CLERK; and KINGS
COUNTY SURROGATE’S COURT CLERK, ACCOUNTING
DEPARTMENT,
Respondents.
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Petitioner Derrick Tingle (“Petitioner”) by his attorneys the Law Firm of Daniel J. Reiter,
Esq., complaining of respondents Sharon Pysher; Kings County Surrogate’s Court; Surrogate
Bernard J. Graham; Lisa Mathis, Chief Clerk of the Kings County Surrogate’s Court; Kim N.
Stephens, Deputy Chief Clerk of the Kings County Surrogate’s Court; Kings County Surrogate’s
Court Clerk; and Kings County Surrogate’s Court Clerk, Accounting Department (collectively,
“Respondents”); hereby alleges, upon information and belief, as follows:
NATURE OF THIS PROCEEDING
1. Petitioner brings this proceeding pursuant to CPLR Art. 78 seeking a writ of mandamus
compelling Respondents to issue citation in an accounting proceeding that was
commenced over 2 ½ years ago (Kings. Co. Sur. Ct. File No. File No. 2019-1618/D). A
true copy of the docket in this proceeding is attached hereto as Exhibit “1”.
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JURISDICTION AND VENUE
2. This Court has jurisdiction pursuant to CPLR 7801-7806 to review the actions of bodies
or officers.
3. Specifically, jurisdiction is proper because the question raised is “whether the body or
officer failed to perform a duty enjoined upon it by law” (CPLR § 7803) and/or whether
the same “refused to perform the duty specifically enjoined upon him by law”. (CPLR
§ 506(b)).
4. CPLR Art. 78 is the appropriate remedy because no appeal can lie from a refusal in the
context of an ex parte application for the signing of a citation. McGinty v. Laurino, 95
AD2d 847, 847 (2d Dep’t 1983).
5. Venue in the Supreme Court of Kings County is proper pursuant to CPLR 506 and CPLR
§ 7804(b) because the instant proceeding is against the Kings County Surrogate’s Court;
Surrogate Bernard J. Graham; Lisa Mathis, Chief Clerk of the Kings County Surrogate’s
Court; Kim N. Stephens, Deputy Chief Clerk of the Kings County Surrogate’s Court;
Kings County Surrogate’s Court Clerk; and Kings County Surrogate’s Court Clerk,
Accounting Department.
PARTIES AND INTERESTED PERSONS
6. Petitioner is a beneficiary of the Alfonso and Gloria Paul Irrevocable Trust dated April
11, 2017 and the petitioner in the proceeding for a compulsory accounting and related
relief pursuant to SCPA § 2205. (See Kings. Co. Sur. Ct. File No. File No. 2019-1618/A).
7. Sharon Pysher is the trustee of the Alfonso and Gloria Paul Irrevocable Trust dated April
11, 2017.
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8. Respondent Kings County Surrogate’s Court is a body with jurisdiction over the
underlying accounting proceeding (Kings. Co. Sur. Ct. File No. File No. 2019-1618).
9. Respondent Surrogate Bernard J. Graham is the assigned Surrogate to Kings. Co. Sur.
Ct. File No. File No. 2019-1618.
10. Respondent Lisa Mathis is the Chief Clerk of the Kings County Surrogate’s Court.
11. Respondent Kim N. Stephens is the Deputy Chief Clerk of the Kings County Surrogate’s
Court.
12. Respondent Kings County Surrogate’s Court Clerk is the body primarily responsible for
issuing citations in Surrogate’s Court.
13. Respondent Kings County Surrogate’s Court Clerk, Accounting Department, is on
information and belief, the division of the Clerk responsible for handling accounting
proceedings in the Kings County Surrogate’s Court, such as the proceeding in the case-
at-bar.
FACTUAL BACKGROUND
14. On October 30, 2020, Petitioner filed the Petition for a Compulsory Account and
Related Relief SCPA 2205 verified October 30, 2020 (“Petition for Compulsory
Accounting”). (See Kings. Co. Sur. Ct. File No. File No. 2019-1618/A).
15. A proposed Citation was filed contemporaneously therewith.
16. Pursuant to the directives of the Kings County Surrogate’s Court, a revised Petition for
a Compulsory Account (verified December 22, 2020) was filed with the Court.
17. On July 19, 2021, Ms. Pysher filed her Petition for Judicial Settlement of Account of
Trustee verified July 14, 2021 (“Petition for Judicial Settlement of Account”) (See
Kings. Co. Sur. Ct. File No. File No. 2019-1618/D).
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18. Filed contemporaneously therewith was Ms. Pysher’s Accounting verified July 14, 2021
(“Accounting”); a proposed Citation; and her attorney’s Affirmation of Legal Services
affirmed July 19, 2021.
19. On April 17, 2023, Ms. Pysher’s counsel filed an Affirmation to Amend Petition
affirmed April 14, 2023; a proposed Citation; and a proposed Order for Service of
Citation by Publication.
20. Citation has yet to issue in either proceeding.
21. Although the Petition for Compulsory Accounting is arguably moot due to Ms Pysher’s
filing of the Petition for Judicial Settlement of Account, and Accounting, the later
proceeding has laid dormant due to Court inaction for over 2 ½ years without cause.
STANDARD OF REVIEW
22. The question raised is the instant special proceeding is “whether the body or officer
failed to perform a duty enjoined upon it by law” (CPLR § 7803) and whether the same
“refused to perform the duty specifically enjoined upon him by law” (CPLR § 506(b))
by failing to issue citation for over 2 ½ years.
STATUTORY AND REGULATORY FRAMEWORK
23. Pursuant to SCPA § 301(a):
For the purpose of computing the period of limitation under article
two of the civil practice law and rules, a proceeding is commenced
upon the filing of a petition, provided process is issued and service
made upon any respondent within one hundred twenty days after the
date of the filing of the petition, except that when process is served
by publication, the first publication be made within one hundred
twenty days of the filing of the petition.
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24. Pursuant to SCPA § 302, pleadings in Surrogate’s Court “consist of the petition, answer
or objections and account” and “[t]here shall be no other pleading unless directed by the
court.”
25. Pursuant to SCPA § 306(4): “The citation shall be attested in the name of the judge of
the court and by the seal of the court, the original shall be filed by the clerk and a copy
thereof shall be furnished to the petitioner. (emphasis added)”
26. Pursuant to SCPA § 2609(1)(a) and (3), “either the chief clerk, the deputy chief clerk,
or the Surrogate can issue process.” (New York Estate Administration § 2.02 FN 1
[2020 Edition]).
27. Pursuant to 22 NYCRR § 207.40(a), “Whenever a petition for a voluntary accounting
is presented, the account to which it relates must be filed therewith, if not previously
filed, and a citation to settle such account must thereupon be procured and served on the
parties required to be cited. (emphasis added).”
FIRST CAUSE OF ACTION
Respondents have failed and refused to perform a duty specifically enjoined upon it by law
28. The question raised in this CPLR Art. 78 proceeding is whether the Respondents have
“failed to perform a duty enjoined upon it by law” (CPLR § 7803) and/or whether
Respondents “refused to perform the duty specifically enjoined upon him by law”.
(CPLR § 506(b)).
29. On July 19, 2021, Ms. Pysher filed her Petition for Judicial Settlement of Account (See
Kings. Co. Sur. Ct. File No. File No. 2019-1618/D).
30. Filed contemporaneously therewith was a proposed Citation.
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31. Pursuant to 22 NYCRR § 207.40(a), “Whenever a petition for a voluntary accounting
is presented…a citation to settle such account must thereupon be…served on the parties
required to be cited. (emphasis added).” The Respondents are obligated to issue citation
and Ms. Pysher is obligated to serve the same.
32. Pursuant to SCPA § 306(4): “The citation…shall be furnished to the petitioner”.
33. Pursuant to SCPA § 301(a):
For the purpose of computing the period of limitation under article
two of the civil practice law and rules, a proceeding is commenced
upon the filing of a petition, provided process is issued and service
made upon any respondent within one hundred twenty days after the
date of the filing of the petition, except that when process is served
by publication, the first publication be made within one hundred
twenty days of the filing of the petition.
34. Delay in issuing the Citation in this matter by the Court creates potential statute of
limitation issues in the future.
35. It has been over 2 ½ years since Ms. Pysher filed her Petition for Judicial Settlement
of Account and proposed Citation, but the Respondents have failed issue citation.
36. No prior application has been made for the relief requested herein.
PRAYER FOR RELIEF
WHEREFORE, based on the foregoing, Petitioner prays for judgment in his favor
and against Respondents for a writ of mandamus compelling Respondents to issue citation
in the relevant accounting proceeding; and for such other and further relief as this
Honorable Court may deem just and proper.
Dated: Queens, New York
May 14, 2024
__________________________
DANIEL J. REITER, ESQ.
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Principal Attorney
Law Firm of Daniel J. Reiter, Esq.
Attorneys for Petitioner Derrick
Tingle
30 Wall Street, 8th Floor (Suite 820)
New York, New York 10005
(646) 820-4011
djr@djrattorney.com
VERIFICATION
I, Daniel J. Reiter, an attorney admitted to the practice of law before the courts of the State
of New York, and not a party to the above-entitled cause, affirm the following to be true under the
penalties of perjury, on information and belief, pursuant to CPLR 2106:
Your Affirmant is the attorney for Derrick Tingle, Petitioner in the within proceeding, and
makes this Verification pursuant to CPLR 3020(d)(3); that Your Affirmant has read the foregoing
Petition and knows the contents thereof; that the same is true to Your Affirmant’s own knowledge,
except as to the matters therein stated to be alleged on information and belief, and that as to those
matters Your Affirmant believes it to be true. This verification is made by Your Affirmant instead
of Petitioner because Petitioner is not within the county where Your Affirmant maintains his office.
Petitioner is currently located, and resides, in the County of Kings.
______________________________
DANIEL J. REITER, ESQ.
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Preview
FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------x In the Matter of DERRICK TINGLE, Petitioner, Index No. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, VERIFIED PETITION -against- SHARON PYSHER; KINGS COUNTY SURROGATE’S COURT; SURROGATE BERNARD J. GRAHAM; LISA MATHIS, CHIEF CLERK OF THE KINGS COUNTY SURROGATE’S COURT; KIM N. STEPHENS, DEPUTY CHIEF CLERK OF THE KINGS COUNTY SURROGATE’S COURT; KINGS COUNTY SURROGATE’S COURT CLERK; and KINGS COUNTY SURROGATE’S COURT CLERK, ACCOUNTING DEPARTMENT, Respondents. -------------------------------------------------------------------------x Petitioner Derrick Tingle (“Petitioner”) by his attorneys the Law Firm of Daniel J. Reiter, Esq., complaining of respondents Sharon Pysher; Kings County Surrogate’s Court; Surrogate Bernard J. Graham; Lisa Mathis, Chief Clerk of the Kings County Surrogate’s Court; Kim N. Stephens, Deputy Chief Clerk of the Kings County Surrogate’s Court; Kings County Surrogate’s Court Clerk; and Kings County Surrogate’s Court Clerk, Accounting Department (collectively, “Respondents”); hereby alleges, upon information and belief, as follows: NATURE OF THIS PROCEEDING 1. Petitioner brings this proceeding pursuant to CPLR Art. 78 seeking a writ of mandamus compelling Respondents to issue citation in an accounting proceeding that was commenced over 2 ½ years ago (Kings. Co. Sur. Ct. File No. File No. 2019-1618/D). A true copy of the docket in this proceeding is attached hereto as Exhibit “1”. 1 of 7 FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024 JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to CPLR 7801-7806 to review the actions of bodies or officers. 3. Specifically, jurisdiction is proper because the question raised is “whether the body or officer failed to perform a duty enjoined upon it by law” (CPLR § 7803) and/or whether the same “refused to perform the duty specifically enjoined upon him by law”. (CPLR § 506(b)). 4. CPLR Art. 78 is the appropriate remedy because no appeal can lie from a refusal in the context of an ex parte application for the signing of a citation. McGinty v. Laurino, 95 AD2d 847, 847 (2d Dep’t 1983). 5. Venue in the Supreme Court of Kings County is proper pursuant to CPLR 506 and CPLR § 7804(b) because the instant proceeding is against the Kings County Surrogate’s Court; Surrogate Bernard J. Graham; Lisa Mathis, Chief Clerk of the Kings County Surrogate’s Court; Kim N. Stephens, Deputy Chief Clerk of the Kings County Surrogate’s Court; Kings County Surrogate’s Court Clerk; and Kings County Surrogate’s Court Clerk, Accounting Department. PARTIES AND INTERESTED PERSONS 6. Petitioner is a beneficiary of the Alfonso and Gloria Paul Irrevocable Trust dated April 11, 2017 and the petitioner in the proceeding for a compulsory accounting and related relief pursuant to SCPA § 2205. (See Kings. Co. Sur. Ct. File No. File No. 2019-1618/A). 7. Sharon Pysher is the trustee of the Alfonso and Gloria Paul Irrevocable Trust dated April 11, 2017. 2 of 7 FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024 8. Respondent Kings County Surrogate’s Court is a body with jurisdiction over the underlying accounting proceeding (Kings. Co. Sur. Ct. File No. File No. 2019-1618). 9. Respondent Surrogate Bernard J. Graham is the assigned Surrogate to Kings. Co. Sur. Ct. File No. File No. 2019-1618. 10. Respondent Lisa Mathis is the Chief Clerk of the Kings County Surrogate’s Court. 11. Respondent Kim N. Stephens is the Deputy Chief Clerk of the Kings County Surrogate’s Court. 12. Respondent Kings County Surrogate’s Court Clerk is the body primarily responsible for issuing citations in Surrogate’s Court. 13. Respondent Kings County Surrogate’s Court Clerk, Accounting Department, is on information and belief, the division of the Clerk responsible for handling accounting proceedings in the Kings County Surrogate’s Court, such as the proceeding in the case- at-bar. FACTUAL BACKGROUND 14. On October 30, 2020, Petitioner filed the Petition for a Compulsory Account and Related Relief SCPA 2205 verified October 30, 2020 (“Petition for Compulsory Accounting”). (See Kings. Co. Sur. Ct. File No. File No. 2019-1618/A). 15. A proposed Citation was filed contemporaneously therewith. 16. Pursuant to the directives of the Kings County Surrogate’s Court, a revised Petition for a Compulsory Account (verified December 22, 2020) was filed with the Court. 17. On July 19, 2021, Ms. Pysher filed her Petition for Judicial Settlement of Account of Trustee verified July 14, 2021 (“Petition for Judicial Settlement of Account”) (See Kings. Co. Sur. Ct. File No. File No. 2019-1618/D). 3 of 7 FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024 18. Filed contemporaneously therewith was Ms. Pysher’s Accounting verified July 14, 2021 (“Accounting”); a proposed Citation; and her attorney’s Affirmation of Legal Services affirmed July 19, 2021. 19. On April 17, 2023, Ms. Pysher’s counsel filed an Affirmation to Amend Petition affirmed April 14, 2023; a proposed Citation; and a proposed Order for Service of Citation by Publication. 20. Citation has yet to issue in either proceeding. 21. Although the Petition for Compulsory Accounting is arguably moot due to Ms Pysher’s filing of the Petition for Judicial Settlement of Account, and Accounting, the later proceeding has laid dormant due to Court inaction for over 2 ½ years without cause. STANDARD OF REVIEW 22. The question raised is the instant special proceeding is “whether the body or officer failed to perform a duty enjoined upon it by law” (CPLR § 7803) and whether the same “refused to perform the duty specifically enjoined upon him by law” (CPLR § 506(b)) by failing to issue citation for over 2 ½ years. STATUTORY AND REGULATORY FRAMEWORK 23. Pursuant to SCPA § 301(a): For the purpose of computing the period of limitation under article two of the civil practice law and rules, a proceeding is commenced upon the filing of a petition, provided process is issued and service made upon any respondent within one hundred twenty days after the date of the filing of the petition, except that when process is served by publication, the first publication be made within one hundred twenty days of the filing of the petition. 4 of 7 FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024 24. Pursuant to SCPA § 302, pleadings in Surrogate’s Court “consist of the petition, answer or objections and account” and “[t]here shall be no other pleading unless directed by the court.” 25. Pursuant to SCPA § 306(4): “The citation shall be attested in the name of the judge of the court and by the seal of the court, the original shall be filed by the clerk and a copy thereof shall be furnished to the petitioner. (emphasis added)” 26. Pursuant to SCPA § 2609(1)(a) and (3), “either the chief clerk, the deputy chief clerk, or the Surrogate can issue process.” (New York Estate Administration § 2.02 FN 1 [2020 Edition]). 27. Pursuant to 22 NYCRR § 207.40(a), “Whenever a petition for a voluntary accounting is presented, the account to which it relates must be filed therewith, if not previously filed, and a citation to settle such account must thereupon be procured and served on the parties required to be cited. (emphasis added).” FIRST CAUSE OF ACTION Respondents have failed and refused to perform a duty specifically enjoined upon it by law 28. The question raised in this CPLR Art. 78 proceeding is whether the Respondents have “failed to perform a duty enjoined upon it by law” (CPLR § 7803) and/or whether Respondents “refused to perform the duty specifically enjoined upon him by law”. (CPLR § 506(b)). 29. On July 19, 2021, Ms. Pysher filed her Petition for Judicial Settlement of Account (See Kings. Co. Sur. Ct. File No. File No. 2019-1618/D). 30. Filed contemporaneously therewith was a proposed Citation. 5 of 7 FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024 31. Pursuant to 22 NYCRR § 207.40(a), “Whenever a petition for a voluntary accounting is presented…a citation to settle such account must thereupon be…served on the parties required to be cited. (emphasis added).” The Respondents are obligated to issue citation and Ms. Pysher is obligated to serve the same. 32. Pursuant to SCPA § 306(4): “The citation…shall be furnished to the petitioner”. 33. Pursuant to SCPA § 301(a): For the purpose of computing the period of limitation under article two of the civil practice law and rules, a proceeding is commenced upon the filing of a petition, provided process is issued and service made upon any respondent within one hundred twenty days after the date of the filing of the petition, except that when process is served by publication, the first publication be made within one hundred twenty days of the filing of the petition. 34. Delay in issuing the Citation in this matter by the Court creates potential statute of limitation issues in the future. 35. It has been over 2 ½ years since Ms. Pysher filed her Petition for Judicial Settlement of Account and proposed Citation, but the Respondents have failed issue citation. 36. No prior application has been made for the relief requested herein. PRAYER FOR RELIEF WHEREFORE, based on the foregoing, Petitioner prays for judgment in his favor and against Respondents for a writ of mandamus compelling Respondents to issue citation in the relevant accounting proceeding; and for such other and further relief as this Honorable Court may deem just and proper. Dated: Queens, New York May 14, 2024 __________________________ DANIEL J. REITER, ESQ. 6 of 7 FILED: KINGS COUNTY CLERK 05/14/2024 03:00 PM INDEX NO. 513479/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2024 Principal Attorney Law Firm of Daniel J. Reiter, Esq. Attorneys for Petitioner Derrick Tingle 30 Wall Street, 8th Floor (Suite 820) New York, New York 10005 (646) 820-4011 djr@djrattorney.com VERIFICATION I, Daniel J. Reiter, an attorney admitted to the practice of law before the courts of the State of New York, and not a party to the above-entitled cause, affirm the following to be true under the penalties of perjury, on information and belief, pursuant to CPLR 2106: Your Affirmant is the attorney for Derrick Tingle, Petitioner in the within proceeding, and makes this Verification pursuant to CPLR 3020(d)(3); that Your Affirmant has read the foregoing Petition and knows the contents thereof; that the same is true to Your Affirmant’s own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters Your Affirmant believes it to be true. This verification is made by Your Affirmant instead of Petitioner because Petitioner is not within the county where Your Affirmant maintains his office. Petitioner is currently located, and resides, in the County of Kings. ______________________________ DANIEL J. REITER, ESQ. 7 of 7