Preview
FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023
Ex.5 I
J.
t .{
STATE OE NEW YORK
SURROGATE' S COURT: COUNTY OF SUEEqLK
---r----------------------x
In the Matter of the Petiti-on of
RAYMOND E. vAN ZWIENEN, as
successor trustee of the
EiIe No. 201,1-718 /B
WILLIAM H, VAN ZWI ENEN
REVOCABLE TRUST,
ATFIRMATION IN
OPPOSITION OF MOTION
to Recover Possession of t.he TO VACATE DEFALEI
Real- Property Located at 12 Ma.Ilar
Avenue, in the Hamlet of Bay Shore,
in the County of Suffolk, in the
:::::-::-:::-llII:- jM-11-lll!-IY---
BILL P. PARKAS. an attorney admi tted to practice in the
Courts of the State of New York, hereby affirms the fol lowing
under penalty of perj ury :
1. r am a member of the firm of McCoyd, Parkas &
Ronan LLP, attorneys for Petitioner Raymond E. Van Zwienen in th
above-capt j.oned proceeding. I
fully familiar with the fact s
am
recited herein through my review of the relevant documentat ion,
and my active participation in this proceeding and the prior
probate proceeding in this estate.
. 2. I submit this affirmation in opposition to the
mot j-ons made by Yan Ping Xu (.,Respondent,,). returnable
.March l-4,
20Lg and March 20, 2018, by which she seeks an order vacating he
default and dismissing the petition filed herein.
3. The instant motion should be. denied because
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Respondent has not proffered a reasonable excuse for her failure
to (a) appear on either return date of citation (i.e. lTanuary 30,
2018 and Eebruary 6, 2Ol8), or (b) file an answer or objections
to the petition within the time prescribed by Iaw, nor has'
Respondent demonstrated a meritorious defense to Petitioner, s
claim that Respondent has wrongfully remained in possession of
the Trust's reaL property since March 29, 2017, in violation ot
the explicit terms of the Trust, as arnended.
4, Respondent's application is based upon unsworn,
self-serving and conclusory allegations of fact, and
mischaracterizations of the governing law, and it reflects
nothing more than her obstinate attempts at delaying her
departure from the residence, thereby frustrating the decedent, s
intentions and causing substantial- prejudice to the Trust and its
other beneficiarids.
FACTT'AL BAC KGROUND
5. ['lilliam H. Van Zwienen ("Decedent") di-ed a
domiciliary of SuffolK County, New York, on September 29, 2A16.
He was survived by Respondent, as his surviving spouse, and the
four children from his first marriage -- Petitioner, Steven Van
Zwienen, Janine Van Zwienen, and Denise Berger.
6. During his life, Decedent created the William H.
Van Zwienen Revocable Trust, under written agreement between
himself as settlor and as trustee. dated July L5. 2008, as
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amended by written instruments dated December 16, 2013 (the
"Eirst f7, 2014 (the "Second
Amendment")I and October
Amendment.") 2 (collectively. the "Trust"). A copy of the Trust
agreement and the two amendments t.hereto are annexed hereto as
Exhibits *A," *B," and "C," respectively.
1. with the real property
Decedent funded the Trust
at issue in this proceeding,' his home located at 12 Mallar
Avenue, Bay Shore, New York (the "Property") . A copy of
Decedent's deed transferring title to himself, as trustee of the
Trust, dated July 15, 2008. is annexed hereto as Exhibit "F."
8. Pursuant to the 2008 Trust agreement, upon
Decedent's death all property therein would pass to Respondent,
or, if she had predeceased, one-half to Decedent's children and
one-half to members of Respondent's famiLy. See Exh. A at 4-5.
Respondent and Petit.ioner were named as first and second
successor trustees to Decedent, respective.l-y. Id. at B.
9. Pursuant to the 2013 Flrst Amendment., Decedent
removed Respondent as a beneficiary of the Trust and named his
four children as the only remaindermen. Decedent named
Petitioner as first successor trustee and Decedent, s son Steven
I executed a }li]1, dated December 16, 2013 (the
*2013 Will"), and a aLso
DecedenL
power of attorney contemporaneously with the First.
Amendment. Copies of the 2013, +liII and Decedent,s power of attorney
are annexed hereto collectively as Exhibit ..D.,,
2 Decedent executed hj-s Last WilI and Testament. dat.ed Oclobet
l'l , 20L4 (the 'Vri1I"), con tempo raneous I y wit.h the Second Anendment. A
copy of the Wj.Il is annexed hereto as Exhibit '.E.,, The Wj.II was
admi.tted to probate by decree of this Court dated November 30. 20Ig.
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as second successor trustee. See Exh. B at 1, 5-6. The Eirst
Amendment. affirmed Lhe Trust in aII ot.her respects. Id. at 6.
10. Purspant to the 2014 Second Amendrnent, Respondent
was re-inserted as a beneficiary of the Trust, and upon
Decedent's death she was to share the Trust remainder with
Decedent's four children. in equal shares. See Exh. c aL 1'-2, 4
Decedent also permitLed Respondent to reside in the Property for
the six-month period immediately following his death.
Specifically, the Trust reads, in pertinent part:
Said property .. . shall be held by the
Trustee for the sole benefit of the Settlor's
) wife as her personal residence fo.r a period
of SIX (6) MONTHS from the date of the
Settlor's death. (emphasis original) .
rd. at 2-3. Upon the expiration of the six months, the trustee
is directed to seII the Property and distribute the proceeds. The
Trust reads:
Notwithstanding the foregoing, the Trustee
shall list the Property for sale. show the
Property to prospective buyers, and enter
into a contract of sale for same, however the
closing of sale may not occur until at leasL
six (6) months have passed from the date of
the Settlor's death, unless the Settlor's
wife has vacate.d the Property before such
time or consents to the transfer of title at
an earlier date, in writing.
ld. at J
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The Second Amendment affirmed the Trust in aIl- other respects.
Id. at 8.3
11. Throughout Decedent's estate planning, he was
represented by the Law firm of Davidolr Dpvidow Siegel- & Stern,
LLP (*DDSS"). Indeed each of the amendments to the Trust was
supervised by MicheIle JabJ-onsky, Esq. , a partner with DDSS, who
met on muLtiple occasions with Decedent and bonfirmed his
intentions as reflected in the Eirst and Second Amendments to the
Trust, Annexed to this affirmation as Exhibit "S" is Ms.
Jablonsky's affidavit, sworn to March L2, 2018, i-n which she
state.s, among other things, that Decedent possessed the requisite
mencal capacity to amend a trust (and create a WiIl), that he
understood the consequences of his actj.ons, and that he was
acting free of any restraint. Ms. Jablonsky also details that
she met and spoke onJ"y with Decedent about the changes to his
estate planning documents, and she confirms that none of his
children were involved in the process.
r The Trust also contains an in cerrorem clause, which stat.es:
"If any beneficiary under this trust, or rj.der hereto, shal1, in any
manner, direct.Iy or indirectty, at.tempt to contest or oppose t.he
dj-rections or validj.ty of this t.rust, or rider hereto, in any court or
conmence or prosecute any legal proceeding of any ki-nd in any courE to
set aside this trust, or rider hereto. then and in that evenl such
beneficiary shaLl forfeit and cease to have any righ! or interest
whatsoever under this trust, or rider hereto. fn such an event, t.hj.s
trust, and rider heret.o, shail be interpreted in al] respects as if
such beneficiary had predeceased the Set.tlor. Notwithstanding the
above, a beneficiary nay pursue a lega]Iy enforceable debt a;ainst. the
Settlor or TrusL, incurred prior to the Set.tlor's death,,. nxtr. a at
2't .
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PROCEDURAI BACKGROI'ND
12. Approximately four months after Decedent' s death,
Petitioner commenced a proceeding in this Court to probate
Decedent's WilI and for the issuance to him of let te rs
testamentary. Prior to the citation return date therein of May
2, 201-l , Respondent filed objections to probate, dated April 14,
20!1 .l
13. On , Petitioner sent Respondent a
February 20, ,ol7
letter in forming her of his obligation as succes sor trustee to
sell the Property, and he demanded that she vacate no later than
April, l, 2017. A copy of the February 20, 2011 . correspondence
from Petitioner to Respondent is annexed hereto as Exhibit "G."5
14. Respondent's right to occuPy the ProperEy after
Decedent's death terminated on March 29, 2071 . Respondent did
not vacate the property at that time, and she continues to
wrongfully occupy the Property to this date (almost a year
' The Court struck Respondent's objections to probaLe as a
sancEion for faj.Iing to comply wiLh her discovery obligations'
Specifically, by Decision and Order dated Novembet- 30! 2011 ,-- -
pLtitioner'i cross-motion for sanctions pursuant to CPLR 3126(3) was
granted, On the same date, the Court aLso ent.ered a probate decree,
iOmitti.rg the VtilI to probate and directing lhat letters testamentary
issue to Petitioner. ResPondent's motion to reargue the court's
Novenber 30, z}:l't Decision and order in the probate proceedinq is
culrently pending before the CourL' The factual background of the
plobate irtceeaLng. includj-ng Respondent's Proven history of wilIful
ind contumacious londuct, is detailed in the November 30. 201'?
Decision and order. copies of the Court's Decision and order. dated
November 30, 2OL1 , and irobate Decree of the same date, are annexed
hereto collectively as Exhibit "H."
5 Petitioner had authority to demand possession of
the Property in his capacity as successor - trustee of theas Trust. ev en
of
though he mistakenly referred to himself in the letter executor
Decedent' s esLate.
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later) . despit.e Petitioner's numerous. reguests for her
cooperatign and that she vacate. Her continued occupati-on
prevents the sale of the Property and consequentLy no meaningful
distribulion can be made to the Trust's beneficiaries.
15. On August 29, 2oll , a Thirty-Day Notice To
Quit and Vacate Real- Property (the "Notice to Quit") was
personally delivered to Respondent. A copy of the Notice to Quit
and proof of service of the same upon Respondent are annexed
hereto collectively as Exhibit "I."
16. The Noti'ce to Quit demanded that Respondent vacate
the Property within thirty (30) days of its service upon her
(i.e. by Septemlcer 29, 2011), and cautioned her that if she
failed to vacate by such date, Petitioner could conmence a
proceeding to remove her from the Property and seek damages for
her continued possession. See Exh. I.
L7. 'After service of the Notice to euit, counsel for
Petitioner sent a fetter to Respondent, dated September lt 2017,
in .hopes of avoidj-ng formal legal proceedings to obtain
possessj-on. The letter requested that Respondent: (a) confirm
that she wouLd vacate the property $rithin thirty (30) days of
service of the Notice to euit; (b) furnish petit.ioner wit.h a set
of keys to t.he property; (c) confirm that she would not impede
Petitioner, s efforts to sell the property; and (d) conflrm that
she has maintained fire and liabiLity insurance on the property,
as fequired by the Second Anendment to the Trust. A copy of the
correspondence from Bill p. parkas, Esq. to Respondent., datej
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September 7, , is annexed hereto as Exhibit "J. " Respondent
2011
ignored counsel's leLter of September 7, 201'l and never responded
t-n any manner.
18. on December 6, 2011 , Petit ione r f il-ed the instant
petition, dated Decenber 5, 201,1 . Ci.tat ion was issued by the
Clerk of the Court on December 22, 2OL1 , returnable January 30,
2018. The citation was personally served upon Respondent on
January 73, 2018, as evidenced by the proof of service on file
with the Court.
'19. On or ab'out January 20, 2018, Respondent made her
first request to adjourn the return date of the citation, seeking
an adjournment to April 10, 2018. The only basis provided by
Respondent for the \equest to adjourn the matter for L0 weeks was
that she: "... will not be available that day [January 30, 2018]
due to another appointment." Respondent gave no details as to
the nature of h6r alleged appoint.ment, nor did she explain why so
many wee ks werq necessary. A copy of Respondent's first
adj ournment request, dated January 2Ot 20L8, is annexed hereto as
Exhibit "K.
20, 22, 7ALB, Petitioner's counsel wrote to
On January
Respondent via e-mail and overnight mail to reject the
adjournment request, informing her that a nearly three-month
adjournment would be excessive, but counsel did indicate that
Petitloner would consent to a brief one-week adjournment to
Eebruary 6, 2018. A copy of the correspondence from Ryan
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Jennings, Esq. to Respondent, dated January 22, 2018, is annexed
hereto as Exhibit "L. "
2L. In response, Respondent made her second request
for an adjotrrnment. By e-maiI dated January 26, 20L8, Respondent
requesEed an adjournment of the return date of the citation from
.Iahuary 30, 2018 to March 6, 2018. Lj-ke her prior request,
Respondentdid not stabe why such a lengthy ad;ournment would be
necessary. A copy of the correspondence from Respondent to BiIl
P. Parkas, Esq., dated January 25 and January 26, 2018, ts
annexed hereto as Exhlbit "M."
') ^^
22. on January 29, 207'7, Petitioner's counsel
responded via e-maiI rejecting Respondent's request to adjourn
the return date of the citation to March 6, 20LB. Counsel noted
that Respondent had failed to provide a reason for such a
substantial- adjournment, and informed Respondent that should she
fail to appear on .January 30, 2018, counsel would notify the
Court of Respondent's reguests, but oppose any adjournment beyon
Eebruary 6, 2018. Responden! was also informed that any further
requests for an adjournment beyond February 5, 2078 must be made
directly to the Court. A copy of t.he correspondence from BiII p
Parkas, Esq, to Respondent, dated January 29, 2018, is annexed
hereto as Exhibit "N. "
23. not to appear at t.he cal} of
Respondent chose the
calendar on January 30, 2018 (and did not file an answer or
objectiohs), and Petitioner's counsel notified the Court of
Respondent's requests to adjourn the return date of the ci-tation
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to ApriL 10, 2018 and then to March 6, 2018. The Court then
adjourned the return date for one week to February 6, ?OLB. That
same day, Petitioner's counsef notified Respondent of the new
xeturn date of Ebbruary 6, 2OlB via e-mail and regul-ar mail. A
copy of the correspondence from Ryan Jennings, Esq. to
Respondent, dated January 30, 2018, is annexed hgreto as Exhibit
'o. "
24. On February 2, 201-8, Respondent sent yet another
request for an adjournment of the return date. Respondent as ked
the Court to adjourn the February 6, 2018 date to March 5, 2018.
A copy of Respondent's request of February 2, 2 018 is annexed
hereto as Exhibit "P. "
25. On that same date, Petitioner's counsel sent a
letter t.o the Court (with a copy to Respondent) opposing the
additional adjournment, noting that Respondent had never
mentioned that. she.also had an appointmenc on Eebruary 5. 2018.
Until making the instant motion, Respondent had never revealed
the nature of her alleged ,appointments (on January 30th and
February 6th), or the reasons why she could not s.imply reschedul
them, or file a responsive pleading in the interim. A copy of
the correspondence from BiII P. Parkas, Esq. to the Court, dated
Eebruary 2, 2018, is annexed hereto as Exhj.bit "Q."
26. On Eebruary 6, 20L8, Respondent failed to appear
at the call of the calendar, and the matter was submitted for
decision.
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. By Decision and order dated February 16, 201-8. the
21
Court found that Respondent had defaulted, confirmed that
Petj-tiofier is entitled to possession of the Property, and
directed Respondent to vacate the Property within ten (10) days
of service upon her of the Decision and Order. A copy of the
Eebru3ry L6, 2018 Decision and Order of the Court, together with
copies of the Notice of Entry served by Petitioner's counsel,
dated February 20, 24L8, and proof of servj-ce upon Respondent,
are annexed hereto collectively as ExhibiL "R."5
28. On or about February 24, 201,8, Respondent filed
the )nstant notion to vacate her defaul-t, returnabl-e March 20,
2018. Respondent's motion is supported by her affidavit (the "Xu
Aff.") and her memorandum of law (the "Xu Memo"). On March 5,
2018. Respondent obtained an Order to Show Cause. returnabl,e
March J,4, 2018, which provided temporary injunctive relief
restraining the Sheriff (unti1 a determination of the motion)
from removing Respondent from the property.
ARGUUENT
'29. In order to vacate her defaul_t,
Respondent
must: (a) provide a reasonable excuse for the defaul-t; and (b)
demonstrate a meritorious defense to the petition. See CPLR
5 015 (a) (1) ; D iLorenzo .c. Du ton Lumb , 67 N. Y. 2d 138,
141 (1986); Gra v v. B.R. Truckln
, 59 N.Y.2d 649 (1983).
Co,
Respondent is not entitfed to have her default vacated because
she has failed to satisfy either requirement..
6
petitioner has been attempting to serve Respondent
Decision and order, but Respondent ls eviOin s service. wi t.h the
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30. Having defaulted in appearing on the adjourned
return of the citation (i.e., February 5, 20LB) and having failed
to submit an answer or objections to the petition on or before
that dater it is incumbent upon Respondent to establish a
reasonable excuse for her default. Her failure to do so is, in
and of itself, sufficient reason to deny the instant motion'
3l- . Whether an excuse for one's default is reasonable
)
is a determination with in the dlscretion of the court. See
Estate of Bovce, 158 A.D.2d 422 (Lst Dept . 1990).
32. In thi s CASE, Respondent' s default was deliberate
and is not excusable. After she failed to aPPear on the initial
returndateofJanuary30,2}ls,andthematterwasadjournedto
February6,20L8,Respondentconsciouslyandwillfullychosenot
to appear on that adjourned date, nor did she file a responsive
pleading. The only excuse offered for her defaul-t is that the
Court did not answer her Eebruary 2, 20L8 request for another
adjournment of the citation (i.e., from Eebruary 6, 20lB to Marc h
6, 2018). Aff. fl 3. It was simply not reasonabLe for
See Xu
Respondeht to -conclude that her request would be automatically
granted, or that her request somehow stayed the proceeding'
particularly €ince the matter had already been adiourned once''
'
the coui t
Her content ion at paragraph 5 of the xu Aff. thatnormarLt'
...
failed to adhere to "P iin.ipr!" oi civili-tv extension of time "'" is
that would
dictate the routine gr antin; of a requested
completelY baseless, a s the Court had already granted her one
adjournment in the Pro ceeding.
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33. To justify her failure to appear in Court,
Respondent submits unsworn and uncertified scribbled notes from
her alleged doctors' offices indicating that she may have visited
on January 30th and February 6th. See. Respondent's Exh. C.
However, neither writing states the time of her scheduled
appointments, or when the appointments were made, so the Court is
Ieft to guess whether those appointments actrually. took place in
the morning and whether the times actually conflicted with the
calendar ga1J. on either date. It is also noted that the dat.e
written on the note of January 30, 2018 appears to have been
altdred from January 18, 2018. Id. In any case. Respondent had
ample time to reschedule her appoJ.ntments and to file a
responsive pleading. but she chose not to do so.
34. civen Respondent's established history of delay
tactics in the probate proceeding, coupled with her requests
herein for unreasonabl-y Long adjournmenEs, it is cl-ear that her
goal is to forestaLl eviction from t.he property and to frustrate
Decedent's intention for his chil-dren to share in the Trust.
Nevertheless, the uncertified and unsworn proof offered by
Respondentis unpersuasive and insufficient for vacating her
default. See Exh. H at 1-2, 4-5.
35. Not only has Respondent fail_ed Lo show a
reasonable excuse for her vol-untary refusal to appear on either
return date of the cj.tation, but she has also failed to proffer
meritorious defense to the petj.tion. See Zi o v. J oab Ta x1,
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Inc., 20 A.D.3d 521, (2d Dept. 2005) (Court did not excuse a
defendant's default in appearing because he. failed to demonstrate
a justifiable excuse for the default and a meritorious def,ense);
Estate of Reed, ]-]-/03/1992 N.Y.L.J. 25, col. 1 (sur.r. Ct.. Nassa
Cty.)(the court denied the- Respondent's motion to vacate his
default j-n appearing on the return date of citation because of
his failure to establish a meritorious underlying claim) ; Bovce,
158 A.D.2d al 423 (a respondent who failed to appear on return o
the citatlEn failed to establish a meritorious claim, which is
not established by conclusory allegat.ions) .
36. In a desperat.e attempt to forego eviction,
Respondent argues for the first time that t-h; amendments to the
Trust should be invalidated. However, Respondent's Papers are
replete with unsworn and unsubstantiated allegations which fail
to even come close to establishing a meritorious defense to the
petition, or to rebut the opinions of Michelle Jablons.ky, Esq.,
who, incidentally, Respondent did not seek to depose in the
probatb proceeding.
First Trust Amendme nt Is valid
37. Respondent contends that the Fj-rst Amendment is
invalid to void Petitioner's appointment as successor trustee an
remove his sEanding to bring the instant proceeding. However, a
an initial matterr a trust is valid unless a proceeding is
brought to challenge its validity. See Matter of Ba xter , 2011
N.Y. SIip Op 31623(U) (Surr. Ct., Nassau Cty' ) (petitioners had no
StandingwheretheirintereStSintruStwereteIminatedby
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amendments which had not been directly chaLlenged). In a
proceeding to challenge a lifetime trust, or amendments to a
trust/ the burden of proof on al-l- issues rests on the party
seeking to invalidate the trust or its amendments. Id. at 11-l-2;
Matter of Delc;atto, 98 A.D.3d 975 (2d Dept. 20L21 .
38. Respondent has never commenced a proceeding to
chal,l-enge the validity of the Trust or either of the amendments
thereto. In the absence of such a challenge, the provisions of
the Trust iira its amendments, including Petitioner's appointnent
as succes so r trustee under the Fi-rst Amendment and Decedent's
direction to se11 the Property under the Second Amendment, remai
in full force and effect. See Baxter, 2017 N.Y. Slip Op 31623(U)
aL 12.
39. Nevertheless, to the extenE Respondent is allegin
that the Trust amendments are invalid as a meritorious defense t
the petition, .She has not offered any admissible evidence, The
unswo.rn statements in her of law and t.he uncertified
meimorandum
medical records offered are insufficient.
40. Respondent alleges that Decedent lacked the
requisite mentaL capacity when he executed the Eirst Amendment.g
See. at 4-5. However, the competency of the creator of
Xu Memo a
lifetime trust. is presumed, and the burden of proving lack of
mental" capacity to make a lifetime trust is on the party claj-mj-n
Although Respondent also claims that. Decedent was .,under
duress" and "coerced,, when he executed the First. Amendnent, she
provides no support. other chan the mere fact that. Decedent chose tb
leave his propetrty to his children rat.her than to hei.
5. S_;"-i;-;;; at
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incompetence. See e v. Fei-de , 151 A.D.2d 889 (3d Dept..
1989); E ate , 294 A.D.2d 366 (2d DePt. 2002).
f
47. Decedent's. mental capacity/ as well as his freedo
from restraint, is established by the affj-davlt of Michelle
Jablonsky, Esq. (the *MJ Aff."), the attorney draftsperson of the
Eirst and Second Amendments to the Trust (Exh. S) ' .In her
affidavit. Ms. Jablonsky states, among other things, that
Decedent:
was mentally competent to amend his Trust (and to
create a WiII);
read and understood each of his estate p Ianning
documents, and fully understood the consequences
of his act ions ;
reviewed his estate planning documents page by
page, and was given an additional opportunity to
read each document;
was fully aware of the natural objects of his
bounty and the nature and extent of his property,
was not under any restraint. See Exh. S at 4-5.
)
42' Respondent, who was not present during the
execution of either Trust offers only two handwritten
amendmenL,
letters from Decedent to Petitioner. dated December 28, 2013 and
January 9, 2014, as evidence that Decedent .Iacked mental capacit
when he executed the Eirst Amendment.e SCg Respondent's Exh. 8;
Respondent's Exh. 9. SpecificaIIy, she relies on two phrases,
e Although ResPondent also alleges in her unsworn statements
t.hat there were a number of medical issues from which Decedenl
suffered (e.g., heart surgery, urinary tracL infection, syncope,
anemia, gout, etc.). nons of them could be said to affect Decedent's
mental capacity to create a trust. qgg Xu [4emo at 2' Moreover/-no,,
affidavit from a medical professi-onal (or even certified medical
records) is submitted as part of Respondent's motion'
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) o
taken out of context. to support her allegations. Contrary to
Respondent's belief. when read as a whole, both letters support
the fact that Decedent full"y understood the naLure and
consequence of his actions.ro
43. In the December 28, 2 013 Ietter, Deced6nt writes
"My wiJ-I is, I believe. a revocabfe trust. " See Exh. T,
Respondent extrapolat.es that "Decedent believed that there was n
difference betwee,n a will and a revocable trust". as if cognitiv
impa i rment somehow be established from that statement.
.could
Xu Memo at 4. Respondent ignores the fact that Decedent went on
to describe his entire testamentary plan/ to wit, his nominaLion
for executor and power of attorney, that the Property vras bei,ng
left to Petitioner and his siblings, that his other financial
assets had beneficiary desigrations and would pass outside of th
$liLl, and that he was donating his body to Stony Brook Universit
Hospital. See qenerallv , Exh. T. He also provided Lhe corr'ect
contact information for his attorneys. Thus, it is cl-ear from
the contents of Decedent, s letter that he was in possession of
his mental faculties, and knew what he wanted to accomplish.
44. Similarly, in the January 9, 2014 letter,
Respondent points to the fact that Decedent writes ..I have not
yet read thru [sj.c] them.,.., as proof that he never read the
enclosed documents. See Exh. U. Not only is such an
10 The December zg, 2ofi tetter from Decedent petitioner
the \,anuary 9,2014 retter from Decedent to petitioner toare annexed an
hereto a Exh j.bits ..!,, and .'U, ,, respectiveLy.
Page 1? of 28
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I a
I
interpretation ridiculous. but the First Amendment to the Trust
was not even enclosed with the Ietter. ThuS, the statement does
not bear on its validlty, as Respondent suggests. Id.
45. Eurthe.rmore. Respondent was not present during the
execut.ion of the Eirst Amendment, and could not possibly know
whether DecederLt read the documents. It is also clear from the
rest of the sentence that Decedent merely had not thoroughly read
through the documents for errors. Decedent's use of loose
Ianguage does not demonstrate that Decedent could not understand
the nature and consequences of his actions. On the contrary, t.he
affidavit from Ms. Jablonsky (Exh. S) makes cl.ear that the
Decedent knew what he was doing at all tines.
Second Trust Arnendnent Is VaLid
46. Respondent also asserts that the Second Amendment
to the Trust in invalid, but she employs self-servj-ng opinion, ,
rank speculatibn, and whol ly unsupported factual claims.
Ultimately, Respondent fai ls to offer any evidence (admissib.Le or
otherwise) to demonstrate that there would be any merit to a
challenge of the Second Amendment (or the First Amendment) .
qt. Respondent advances a number of frivolous
argumentb that the Second Amendment was the resul-t of undue
influenbe.ll As stated above, Respondent has not brought any
formal procdeding to challenge the validity of lhe Second
1t Respondent neverobjected to tfie i.0ill, which was executed
ly with the Second Amendment, based upon alLegati-oDs of
contempo raneous
) undue influence or lack of tesEamentary capacity.
Page 18 of 28
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O t
Amendment.12 Moreover, Decedent's capacity and freedom from
undue influence are.also qstablished by Ms. Jablonsky's
affidavir. see Exh. s at 4-5.
48. Respondent fails to point to a specific act of
undue infl-uence exercised upon the Decedent when he executed the
Second funendment. I nstead. shecites a number of unsubsLantiaEed
transfers made by Decedent during his lifetime as proof that he
was "not free to exercise his desires, " including transfers of
his social securit.y, benefits, payments of premiums on Iife
insurance poJ-icies for his sons, changes in his beneficiary
designations, and distribuEions to his grandchildren Id. at 9-
1r.13
49. the burden of asserting a
Respondent has
meritorious cfaim that the Trust amendments were the ploduct of
undue lnfluence. See Estate of Donaldson 38 Misc.3d 41, 842 B
(Surr. Ct. , Ribhmohd Cty., 20t2t . The infLuence exerted musE
amount co a moral coercion which restrained Decedent's
independent act ion and dest royed his free agencyr or which
constrained him to dd something against his wishes. See I€. ,.
Estate of Ha rmon 01/22/15 N.Y.\ .J, 29, col. 1(Surr. Ct. ,
Preview
FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 Ex.5 I J. t .{ STATE OE NEW YORK SURROGATE' S COURT: COUNTY OF SUEEqLK ---r----------------------x In the Matter of the Petiti-on of RAYMOND E. vAN ZWIENEN, as successor trustee of the EiIe No. 201,1-718 /B WILLIAM H, VAN ZWI ENEN REVOCABLE TRUST, ATFIRMATION IN OPPOSITION OF MOTION to Recover Possession of t.he TO VACATE DEFALEI Real- Property Located at 12 Ma.Ilar Avenue, in the Hamlet of Bay Shore, in the County of Suffolk, in the :::::-::-:::-llII:- jM-11-lll!-IY--- BILL P. PARKAS. an attorney admi tted to practice in the Courts of the State of New York, hereby affirms the fol lowing under penalty of perj ury : 1. r am a member of the firm of McCoyd, Parkas & Ronan LLP, attorneys for Petitioner Raymond E. Van Zwienen in th above-capt j.oned proceeding. I fully familiar with the fact s am recited herein through my review of the relevant documentat ion, and my active participation in this proceeding and the prior probate proceeding in this estate. . 2. I submit this affirmation in opposition to the mot j-ons made by Yan Ping Xu (.,Respondent,,). returnable .March l-4, 20Lg and March 20, 2018, by which she seeks an order vacating he default and dismissing the petition filed herein. 3. The instant motion should be. denied because Page i, of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 I t Respondent has not proffered a reasonable excuse for her failure to (a) appear on either return date of citation (i.e. lTanuary 30, 2018 and Eebruary 6, 2Ol8), or (b) file an answer or objections to the petition within the time prescribed by Iaw, nor has' Respondent demonstrated a meritorious defense to Petitioner, s claim that Respondent has wrongfully remained in possession of the Trust's reaL property since March 29, 2017, in violation ot the explicit terms of the Trust, as arnended. 4, Respondent's application is based upon unsworn, self-serving and conclusory allegations of fact, and mischaracterizations of the governing law, and it reflects nothing more than her obstinate attempts at delaying her departure from the residence, thereby frustrating the decedent, s intentions and causing substantial- prejudice to the Trust and its other beneficiarids. FACTT'AL BAC KGROUND 5. ['lilliam H. Van Zwienen ("Decedent") di-ed a domiciliary of SuffolK County, New York, on September 29, 2A16. He was survived by Respondent, as his surviving spouse, and the four children from his first marriage -- Petitioner, Steven Van Zwienen, Janine Van Zwienen, and Denise Berger. 6. During his life, Decedent created the William H. Van Zwienen Revocable Trust, under written agreement between himself as settlor and as trustee. dated July L5. 2008, as Page 2 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 I o amended by written instruments dated December 16, 2013 (the "Eirst f7, 2014 (the "Second Amendment")I and October Amendment.") 2 (collectively. the "Trust"). A copy of the Trust agreement and the two amendments t.hereto are annexed hereto as Exhibits *A," *B," and "C," respectively. 1. with the real property Decedent funded the Trust at issue in this proceeding,' his home located at 12 Mallar Avenue, Bay Shore, New York (the "Property") . A copy of Decedent's deed transferring title to himself, as trustee of the Trust, dated July 15, 2008. is annexed hereto as Exhibit "F." 8. Pursuant to the 2008 Trust agreement, upon Decedent's death all property therein would pass to Respondent, or, if she had predeceased, one-half to Decedent's children and one-half to members of Respondent's famiLy. See Exh. A at 4-5. Respondent and Petit.ioner were named as first and second successor trustees to Decedent, respective.l-y. Id. at B. 9. Pursuant to the 2013 Flrst Amendment., Decedent removed Respondent as a beneficiary of the Trust and named his four children as the only remaindermen. Decedent named Petitioner as first successor trustee and Decedent, s son Steven I executed a }li]1, dated December 16, 2013 (the *2013 Will"), and a aLso DecedenL power of attorney contemporaneously with the First. Amendment. Copies of the 2013, +liII and Decedent,s power of attorney are annexed hereto collectively as Exhibit ..D.,, 2 Decedent executed hj-s Last WilI and Testament. dat.ed Oclobet l'l , 20L4 (the 'Vri1I"), con tempo raneous I y wit.h the Second Anendment. A copy of the Wj.Il is annexed hereto as Exhibit '.E.,, The Wj.II was admi.tted to probate by decree of this Court dated November 30. 20Ig. Page 3 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 I o as second successor trustee. See Exh. B at 1, 5-6. The Eirst Amendment. affirmed Lhe Trust in aII ot.her respects. Id. at 6. 10. Purspant to the 2014 Second Amendrnent, Respondent was re-inserted as a beneficiary of the Trust, and upon Decedent's death she was to share the Trust remainder with Decedent's four children. in equal shares. See Exh. c aL 1'-2, 4 Decedent also permitLed Respondent to reside in the Property for the six-month period immediately following his death. Specifically, the Trust reads, in pertinent part: Said property .. . shall be held by the Trustee for the sole benefit of the Settlor's ) wife as her personal residence fo.r a period of SIX (6) MONTHS from the date of the Settlor's death. (emphasis original) . rd. at 2-3. Upon the expiration of the six months, the trustee is directed to seII the Property and distribute the proceeds. The Trust reads: Notwithstanding the foregoing, the Trustee shall list the Property for sale. show the Property to prospective buyers, and enter into a contract of sale for same, however the closing of sale may not occur until at leasL six (6) months have passed from the date of the Settlor's death, unless the Settlor's wife has vacate.d the Property before such time or consents to the transfer of title at an earlier date, in writing. ld. at J Page 4 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 a a The Second Amendment affirmed the Trust in aIl- other respects. Id. at 8.3 11. Throughout Decedent's estate planning, he was represented by the Law firm of Davidolr Dpvidow Siegel- & Stern, LLP (*DDSS"). Indeed each of the amendments to the Trust was supervised by MicheIle JabJ-onsky, Esq. , a partner with DDSS, who met on muLtiple occasions with Decedent and bonfirmed his intentions as reflected in the Eirst and Second Amendments to the Trust, Annexed to this affirmation as Exhibit "S" is Ms. Jablonsky's affidavit, sworn to March L2, 2018, i-n which she state.s, among other things, that Decedent possessed the requisite mencal capacity to amend a trust (and create a WiIl), that he understood the consequences of his actj.ons, and that he was acting free of any restraint. Ms. Jablonsky also details that she met and spoke onJ"y with Decedent about the changes to his estate planning documents, and she confirms that none of his children were involved in the process. r The Trust also contains an in cerrorem clause, which stat.es: "If any beneficiary under this trust, or rj.der hereto, shal1, in any manner, direct.Iy or indirectty, at.tempt to contest or oppose t.he dj-rections or validj.ty of this t.rust, or rider hereto, in any court or conmence or prosecute any legal proceeding of any ki-nd in any courE to set aside this trust, or rider hereto. then and in that evenl such beneficiary shaLl forfeit and cease to have any righ! or interest whatsoever under this trust, or rider hereto. fn such an event, t.hj.s trust, and rider heret.o, shail be interpreted in al] respects as if such beneficiary had predeceased the Set.tlor. Notwithstanding the above, a beneficiary nay pursue a lega]Iy enforceable debt a;ainst. the Settlor or TrusL, incurred prior to the Set.tlor's death,,. nxtr. a at 2't . Page 5 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 a a PROCEDURAI BACKGROI'ND 12. Approximately four months after Decedent' s death, Petitioner commenced a proceeding in this Court to probate Decedent's WilI and for the issuance to him of let te rs testamentary. Prior to the citation return date therein of May 2, 201-l , Respondent filed objections to probate, dated April 14, 20!1 .l 13. On , Petitioner sent Respondent a February 20, ,ol7 letter in forming her of his obligation as succes sor trustee to sell the Property, and he demanded that she vacate no later than April, l, 2017. A copy of the February 20, 2011 . correspondence from Petitioner to Respondent is annexed hereto as Exhibit "G."5 14. Respondent's right to occuPy the ProperEy after Decedent's death terminated on March 29, 2071 . Respondent did not vacate the property at that time, and she continues to wrongfully occupy the Property to this date (almost a year ' The Court struck Respondent's objections to probaLe as a sancEion for faj.Iing to comply wiLh her discovery obligations' Specifically, by Decision and Order dated Novembet- 30! 2011 ,-- - pLtitioner'i cross-motion for sanctions pursuant to CPLR 3126(3) was granted, On the same date, the Court aLso ent.ered a probate decree, iOmitti.rg the VtilI to probate and directing lhat letters testamentary issue to Petitioner. ResPondent's motion to reargue the court's Novenber 30, z}:l't Decision and order in the probate proceedinq is culrently pending before the CourL' The factual background of the plobate irtceeaLng. includj-ng Respondent's Proven history of wilIful ind contumacious londuct, is detailed in the November 30. 201'? Decision and order. copies of the Court's Decision and order. dated November 30, 2OL1 , and irobate Decree of the same date, are annexed hereto collectively as Exhibit "H." 5 Petitioner had authority to demand possession of the Property in his capacity as successor - trustee of theas Trust. ev en of though he mistakenly referred to himself in the letter executor Decedent' s esLate. Page 6 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 a o later) . despit.e Petitioner's numerous. reguests for her cooperatign and that she vacate. Her continued occupati-on prevents the sale of the Property and consequentLy no meaningful distribulion can be made to the Trust's beneficiaries. 15. On August 29, 2oll , a Thirty-Day Notice To Quit and Vacate Real- Property (the "Notice to Quit") was personally delivered to Respondent. A copy of the Notice to Quit and proof of service of the same upon Respondent are annexed hereto collectively as Exhibit "I." 16. The Noti'ce to Quit demanded that Respondent vacate the Property within thirty (30) days of its service upon her (i.e. by Septemlcer 29, 2011), and cautioned her that if she failed to vacate by such date, Petitioner could conmence a proceeding to remove her from the Property and seek damages for her continued possession. See Exh. I. L7. 'After service of the Notice to euit, counsel for Petitioner sent a fetter to Respondent, dated September lt 2017, in .hopes of avoidj-ng formal legal proceedings to obtain possessj-on. The letter requested that Respondent: (a) confirm that she wouLd vacate the property $rithin thirty (30) days of service of the Notice to euit; (b) furnish petit.ioner wit.h a set of keys to t.he property; (c) confirm that she would not impede Petitioner, s efforts to sell the property; and (d) conflrm that she has maintained fire and liabiLity insurance on the property, as fequired by the Second Anendment to the Trust. A copy of the correspondence from Bill p. parkas, Esq. to Respondent., datej Page 7 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 a o September 7, , is annexed hereto as Exhibit "J. " Respondent 2011 ignored counsel's leLter of September 7, 201'l and never responded t-n any manner. 18. on December 6, 2011 , Petit ione r f il-ed the instant petition, dated Decenber 5, 201,1 . Ci.tat ion was issued by the Clerk of the Court on December 22, 2OL1 , returnable January 30, 2018. The citation was personally served upon Respondent on January 73, 2018, as evidenced by the proof of service on file with the Court. '19. On or ab'out January 20, 2018, Respondent made her first request to adjourn the return date of the citation, seeking an adjournment to April 10, 2018. The only basis provided by Respondent for the \equest to adjourn the matter for L0 weeks was that she: "... will not be available that day [January 30, 2018] due to another appointment." Respondent gave no details as to the nature of h6r alleged appoint.ment, nor did she explain why so many wee ks werq necessary. A copy of Respondent's first adj ournment request, dated January 2Ot 20L8, is annexed hereto as Exhibit "K. 20, 22, 7ALB, Petitioner's counsel wrote to On January Respondent via e-mail and overnight mail to reject the adjournment request, informing her that a nearly three-month adjournment would be excessive, but counsel did indicate that Petitloner would consent to a brief one-week adjournment to Eebruary 6, 2018. A copy of the correspondence from Ryan Page 8 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 a a Jennings, Esq. to Respondent, dated January 22, 2018, is annexed hereto as Exhibit "L. " 2L. In response, Respondent made her second request for an adjotrrnment. By e-maiI dated January 26, 20L8, Respondent requesEed an adjournment of the return date of the citation from .Iahuary 30, 2018 to March 6, 2018. Lj-ke her prior request, Respondentdid not stabe why such a lengthy ad;ournment would be necessary. A copy of the correspondence from Respondent to BiIl P. Parkas, Esq., dated January 25 and January 26, 2018, ts annexed hereto as Exhlbit "M." ') ^^ 22. on January 29, 207'7, Petitioner's counsel responded via e-maiI rejecting Respondent's request to adjourn the return date of the citation to March 6, 20LB. Counsel noted that Respondent had failed to provide a reason for such a substantial- adjournment, and informed Respondent that should she fail to appear on .January 30, 2018, counsel would notify the Court of Respondent's reguests, but oppose any adjournment beyon Eebruary 6, 2018. Responden! was also informed that any further requests for an adjournment beyond February 5, 2078 must be made directly to the Court. A copy of t.he correspondence from BiII p Parkas, Esq, to Respondent, dated January 29, 2018, is annexed hereto as Exhibit "N. " 23. not to appear at t.he cal} of Respondent chose the calendar on January 30, 2018 (and did not file an answer or objectiohs), and Petitioner's counsel notified the Court of Respondent's requests to adjourn the return date of the ci-tation Page 9 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 a a to ApriL 10, 2018 and then to March 6, 2018. The Court then adjourned the return date for one week to February 6, ?OLB. That same day, Petitioner's counsef notified Respondent of the new xeturn date of Ebbruary 6, 2OlB via e-mail and regul-ar mail. A copy of the correspondence from Ryan Jennings, Esq. to Respondent, dated January 30, 2018, is annexed hgreto as Exhibit 'o. " 24. On February 2, 201-8, Respondent sent yet another request for an adjournment of the return date. Respondent as ked the Court to adjourn the February 6, 2018 date to March 5, 2018. A copy of Respondent's request of February 2, 2 018 is annexed hereto as Exhibit "P. " 25. On that same date, Petitioner's counsel sent a letter t.o the Court (with a copy to Respondent) opposing the additional adjournment, noting that Respondent had never mentioned that. she.also had an appointmenc on Eebruary 5. 2018. Until making the instant motion, Respondent had never revealed the nature of her alleged ,appointments (on January 30th and February 6th), or the reasons why she could not s.imply reschedul them, or file a responsive pleading in the interim. A copy of the correspondence from BiII P. Parkas, Esq. to the Court, dated Eebruary 2, 2018, is annexed hereto as Exhj.bit "Q." 26. On Eebruary 6, 20L8, Respondent failed to appear at the call of the calendar, and the matter was submitted for decision. Page l0 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 I o . By Decision and order dated February 16, 201-8. the 21 Court found that Respondent had defaulted, confirmed that Petj-tiofier is entitled to possession of the Property, and directed Respondent to vacate the Property within ten (10) days of service upon her of the Decision and Order. A copy of the Eebru3ry L6, 2018 Decision and Order of the Court, together with copies of the Notice of Entry served by Petitioner's counsel, dated February 20, 24L8, and proof of servj-ce upon Respondent, are annexed hereto collectively as ExhibiL "R."5 28. On or about February 24, 201,8, Respondent filed the )nstant notion to vacate her defaul-t, returnabl-e March 20, 2018. Respondent's motion is supported by her affidavit (the "Xu Aff.") and her memorandum of law (the "Xu Memo"). On March 5, 2018. Respondent obtained an Order to Show Cause. returnabl,e March J,4, 2018, which provided temporary injunctive relief restraining the Sheriff (unti1 a determination of the motion) from removing Respondent from the property. ARGUUENT '29. In order to vacate her defaul_t, Respondent must: (a) provide a reasonable excuse for the defaul-t; and (b) demonstrate a meritorious defense to the petition. See CPLR 5 015 (a) (1) ; D iLorenzo .c. Du ton Lumb , 67 N. Y. 2d 138, 141 (1986); Gra v v. B.R. Truckln , 59 N.Y.2d 649 (1983). Co, Respondent is not entitfed to have her default vacated because she has failed to satisfy either requirement.. 6 petitioner has been attempting to serve Respondent Decision and order, but Respondent ls eviOin s service. wi t.h the Page 11 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 I o 30. Having defaulted in appearing on the adjourned return of the citation (i.e., February 5, 20LB) and having failed to submit an answer or objections to the petition on or before that dater it is incumbent upon Respondent to establish a reasonable excuse for her default. Her failure to do so is, in and of itself, sufficient reason to deny the instant motion' 3l- . Whether an excuse for one's default is reasonable ) is a determination with in the dlscretion of the court. See Estate of Bovce, 158 A.D.2d 422 (Lst Dept . 1990). 32. In thi s CASE, Respondent' s default was deliberate and is not excusable. After she failed to aPPear on the initial returndateofJanuary30,2}ls,andthematterwasadjournedto February6,20L8,Respondentconsciouslyandwillfullychosenot to appear on that adjourned date, nor did she file a responsive pleading. The only excuse offered for her defaul-t is that the Court did not answer her Eebruary 2, 20L8 request for another adjournment of the citation (i.e., from Eebruary 6, 20lB to Marc h 6, 2018). Aff. fl 3. It was simply not reasonabLe for See Xu Respondeht to -conclude that her request would be automatically granted, or that her request somehow stayed the proceeding' particularly €ince the matter had already been adiourned once'' ' the coui t Her content ion at paragraph 5 of the xu Aff. thatnormarLt' ... failed to adhere to "P iin.ipr!" oi civili-tv extension of time "'" is that would dictate the routine gr antin; of a requested completelY baseless, a s the Court had already granted her one adjournment in the Pro ceeding. Page !2 o"f 2A FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 a D 33. To justify her failure to appear in Court, Respondent submits unsworn and uncertified scribbled notes from her alleged doctors' offices indicating that she may have visited on January 30th and February 6th. See. Respondent's Exh. C. However, neither writing states the time of her scheduled appointments, or when the appointments were made, so the Court is Ieft to guess whether those appointments actrually. took place in the morning and whether the times actually conflicted with the calendar ga1J. on either date. It is also noted that the dat.e written on the note of January 30, 2018 appears to have been altdred from January 18, 2018. Id. In any case. Respondent had ample time to reschedule her appoJ.ntments and to file a responsive pleading. but she chose not to do so. 34. civen Respondent's established history of delay tactics in the probate proceeding, coupled with her requests herein for unreasonabl-y Long adjournmenEs, it is cl-ear that her goal is to forestaLl eviction from t.he property and to frustrate Decedent's intention for his chil-dren to share in the Trust. Nevertheless, the uncertified and unsworn proof offered by Respondentis unpersuasive and insufficient for vacating her default. See Exh. H at 1-2, 4-5. 35. Not only has Respondent fail_ed Lo show a reasonable excuse for her vol-untary refusal to appear on either return date of the cj.tation, but she has also failed to proffer meritorious defense to the petj.tion. See Zi o v. J oab Ta x1, Page 13'of 2g FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 o o Inc., 20 A.D.3d 521, (2d Dept. 2005) (Court did not excuse a defendant's default in appearing because he. failed to demonstrate a justifiable excuse for the default and a meritorious def,ense); Estate of Reed, ]-]-/03/1992 N.Y.L.J. 25, col. 1 (sur.r. Ct.. Nassa Cty.)(the court denied the- Respondent's motion to vacate his default j-n appearing on the return date of citation because of his failure to establish a meritorious underlying claim) ; Bovce, 158 A.D.2d al 423 (a respondent who failed to appear on return o the citatlEn failed to establish a meritorious claim, which is not established by conclusory allegat.ions) . 36. In a desperat.e attempt to forego eviction, Respondent argues for the first time that t-h; amendments to the Trust should be invalidated. However, Respondent's Papers are replete with unsworn and unsubstantiated allegations which fail to even come close to establishing a meritorious defense to the petition, or to rebut the opinions of Michelle Jablons.ky, Esq., who, incidentally, Respondent did not seek to depose in the probatb proceeding. First Trust Amendme nt Is valid 37. Respondent contends that the Fj-rst Amendment is invalid to void Petitioner's appointment as successor trustee an remove his sEanding to bring the instant proceeding. However, a an initial matterr a trust is valid unless a proceeding is brought to challenge its validity. See Matter of Ba xter , 2011 N.Y. SIip Op 31623(U) (Surr. Ct., Nassau Cty' ) (petitioners had no StandingwheretheirintereStSintruStwereteIminatedby Page 14 of' 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 o o amendments which had not been directly chaLlenged). In a proceeding to challenge a lifetime trust, or amendments to a trust/ the burden of proof on al-l- issues rests on the party seeking to invalidate the trust or its amendments. Id. at 11-l-2; Matter of Delc;atto, 98 A.D.3d 975 (2d Dept. 20L21 . 38. Respondent has never commenced a proceeding to chal,l-enge the validity of the Trust or either of the amendments thereto. In the absence of such a challenge, the provisions of the Trust iira its amendments, including Petitioner's appointnent as succes so r trustee under the Fi-rst Amendment and Decedent's direction to se11 the Property under the Second Amendment, remai in full force and effect. See Baxter, 2017 N.Y. Slip Op 31623(U) aL 12. 39. Nevertheless, to the extenE Respondent is allegin that the Trust amendments are invalid as a meritorious defense t the petition, .She has not offered any admissible evidence, The unswo.rn statements in her of law and t.he uncertified meimorandum medical records offered are insufficient. 40. Respondent alleges that Decedent lacked the requisite mentaL capacity when he executed the Eirst Amendment.g See. at 4-5. However, the competency of the creator of Xu Memo a lifetime trust. is presumed, and the burden of proving lack of mental" capacity to make a lifetime trust is on the party claj-mj-n Although Respondent also claims that. Decedent was .,under duress" and "coerced,, when he executed the First. Amendnent, she provides no support. other chan the mere fact that. Decedent chose tb leave his propetrty to his children rat.her than to hei. 5. S_;"-i;-;;; at Page 15 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 o o incompetence. See e v. Fei-de , 151 A.D.2d 889 (3d Dept.. 1989); E ate , 294 A.D.2d 366 (2d DePt. 2002). f 47. Decedent's. mental capacity/ as well as his freedo from restraint, is established by the affj-davlt of Michelle Jablonsky, Esq. (the *MJ Aff."), the attorney draftsperson of the Eirst and Second Amendments to the Trust (Exh. S) ' .In her affidavit. Ms. Jablonsky states, among other things, that Decedent: was mentally competent to amend his Trust (and to create a WiII); read and understood each of his estate p Ianning documents, and fully understood the consequences of his act ions ; reviewed his estate planning documents page by page, and was given an additional opportunity to read each document; was fully aware of the natural objects of his bounty and the nature and extent of his property, was not under any restraint. See Exh. S at 4-5. ) 42' Respondent, who was not present during the execution of either Trust offers only two handwritten amendmenL, letters from Decedent to Petitioner. dated December 28, 2013 and January 9, 2014, as evidence that Decedent .Iacked mental capacit when he executed the Eirst Amendment.e SCg Respondent's Exh. 8; Respondent's Exh. 9. SpecificaIIy, she relies on two phrases, e Although ResPondent also alleges in her unsworn statements t.hat there were a number of medical issues from which Decedenl suffered (e.g., heart surgery, urinary tracL infection, syncope, anemia, gout, etc.). nons of them could be said to affect Decedent's mental capacity to create a trust. qgg Xu [4emo at 2' Moreover/-no,, affidavit from a medical professi-onal (or even certified medical records) is submitted as part of Respondent's motion' Page 15 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 ) o taken out of context. to support her allegations. Contrary to Respondent's belief. when read as a whole, both letters support the fact that Decedent full"y understood the naLure and consequence of his actions.ro 43. In the December 28, 2 013 Ietter, Deced6nt writes "My wiJ-I is, I believe. a revocabfe trust. " See Exh. T, Respondent extrapolat.es that "Decedent believed that there was n difference betwee,n a will and a revocable trust". as if cognitiv impa i rment somehow be established from that statement. .could Xu Memo at 4. Respondent ignores the fact that Decedent went on to describe his entire testamentary plan/ to wit, his nominaLion for executor and power of attorney, that the Property vras bei,ng left to Petitioner and his siblings, that his other financial assets had beneficiary desigrations and would pass outside of th $liLl, and that he was donating his body to Stony Brook Universit Hospital. See qenerallv , Exh. T. He also provided Lhe corr'ect contact information for his attorneys. Thus, it is cl-ear from the contents of Decedent, s letter that he was in possession of his mental faculties, and knew what he wanted to accomplish. 44. Similarly, in the January 9, 2014 letter, Respondent points to the fact that Decedent writes ..I have not yet read thru [sj.c] them.,.., as proof that he never read the enclosed documents. See Exh. U. Not only is such an 10 The December zg, 2ofi tetter from Decedent petitioner the \,anuary 9,2014 retter from Decedent to petitioner toare annexed an hereto a Exh j.bits ..!,, and .'U, ,, respectiveLy. Page 1? of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 I a I interpretation ridiculous. but the First Amendment to the Trust was not even enclosed with the Ietter. ThuS, the statement does not bear on its validlty, as Respondent suggests. Id. 45. Eurthe.rmore. Respondent was not present during the execut.ion of the Eirst Amendment, and could not possibly know whether DecederLt read the documents. It is also clear from the rest of the sentence that Decedent merely had not thoroughly read through the documents for errors. Decedent's use of loose Ianguage does not demonstrate that Decedent could not understand the nature and consequences of his actions. On the contrary, t.he affidavit from Ms. Jablonsky (Exh. S) makes cl.ear that the Decedent knew what he was doing at all tines. Second Trust Arnendnent Is VaLid 46. Respondent also asserts that the Second Amendment to the Trust in invalid, but she employs self-servj-ng opinion, , rank speculatibn, and whol ly unsupported factual claims. Ultimately, Respondent fai ls to offer any evidence (admissib.Le or otherwise) to demonstrate that there would be any merit to a challenge of the Second Amendment (or the First Amendment) . qt. Respondent advances a number of frivolous argumentb that the Second Amendment was the resul-t of undue influenbe.ll As stated above, Respondent has not brought any formal procdeding to challenge the validity of lhe Second 1t Respondent neverobjected to tfie i.0ill, which was executed ly with the Second Amendment, based upon alLegati-oDs of contempo raneous ) undue influence or lack of tesEamentary capacity. Page 18 of 28 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:48 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 07/05/2023 O t Amendment.12 Moreover, Decedent's capacity and freedom from undue influence are.also qstablished by Ms. Jablonsky's affidavir. see Exh. s at 4-5. 48. Respondent fails to point to a specific act of undue infl-uence exercised upon the Decedent when he executed the Second funendment. I nstead. shecites a number of unsubsLantiaEed transfers made by Decedent during his lifetime as proof that he was "not free to exercise his desires, " including transfers of his social securit.y, benefits, payments of premiums on Iife insurance poJ-icies for his sons, changes in his beneficiary designations, and distribuEions to his grandchildren Id. at 9- 1r.13 49. the burden of asserting a Respondent has meritorious cfaim that the Trust amendments were the ploduct of undue lnfluence. See Estate of Donaldson 38 Misc.3d 41, 842 B (Surr. Ct. , Ribhmohd Cty., 20t2t . The infLuence exerted musE amount co a moral coercion which restrained Decedent's independent act ion and dest royed his free agencyr or which constrained him to dd something against his wishes. See I€. ,. Estate of Ha rmon 01/22/15 N.Y.\ .J, 29, col. 1(Surr. Ct. ,