Preview
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023
EXHIBIT E
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023
FILED
SURROGATE'S COURT
SUFFOLK COUNTY
. AUG 1 6 2018
SURROGATE'S COURT : SUFFOLK COUNTY
_ _----------------------------_ _ _ _-_..---
MCHAEL C@OWm
CHIEF CLERK
In the Matter of the Petition of )
RAYMOND E. VAN ZWIENEN, as successor ) DECISION/ORDER
trustee of the )
) By: HON. JOHN M. CZYGIER, JR.,
) ..........................
)
) Surrogate
WILLIAM H. VAN ZWIENEN ) ..........
REVOCABLE TRUST, )
) Dated: Au6ru5T of,,
h'
) .......................
to Recover Possession of the Real )
Property Located at 12 Mallar Avenue, in ) File #: 2017-778/B
the Hamlet of Bay Shore, in the County of) ...........
Suffolk, in the State of New York, from )
YAN PING XU. )
________________________________________
In this miscellaneous proceeding to recover the possession of
real property, the court has before it a motion brought by
respondent Yan Ping Xu ("respondent") for a stay under CPLR
5519(a) (6) of this court's order of ejectment dated April 5, 2018.
Respondent Raymond E. Van Zwienen ("respondent") opposes the motion
and cross-moves seeking various relief. For the reasons that
follow, respondent's motion is granted upon the filing of an
undertaking and petitioner's cross-motion is granted in part,
reserved in part.
Backgrognd
On December 22, 2017, petitioner Raymond E. Van Zwienen
("petitioner") commenced the instant proceeding seeking to recover
possession of real property located at 12 Mallar Avenue, Bay Shore,
New York (the "subject property"). Petitioner did so pursuant to
his authority as successor trustee of the William H. Van Zwienen
Revocable Trust (the "Trust"), and following an underlying
contested probate proceeding.
As is relevant here, decedent died testate on September 29,
2016, survived by his wife, Yan Ping Xu, the respondent herein, and
his four children, including petitioner herein. His last will and
testament, dated October 17, 2014 (the "2014 will"), bequeathed his
tangible personal property to respondent and his four children
equally, and the residue to the William H. Van Zwienen Revocable
Trust, which he funded with the subject property. Under the
original trust agreement, all property would pass to respondent
upon decedent's death. By amendment dated December 16, 2013 (the
"First Thust Amendment"), decedent removed respondent as a
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023
Decision Page 2
Estate of William H Van Zwienen, Deceased.
beneficiary and named his four children equally. The second, and
final, trust amendment, dated October 17, 2014 (the "Second Trust
Amendment") gave respondent a six-month period to live in the
subject property following decedent's death, after which the
trustee is directed to sell the property and divide the proceeds
equally amongst respondent and decedent's children.
On March 3, 2017, petitioner proffered the 2014 will for
probate, to which respondent filed objections pro se. The parties
conducted some discovery and, after significant motion practice,
this court ultimately granted petitioner probate and issued letters
testamentary to him.
Petitioner then commenced the instant proceeding, seeking to
recover possession of the subject property and a judgment against
respondent for her use and occupancy of the property from March 30,
2017 until the date of petitioner's exclusive possession. Citation
issued for January 30, 2018, which the court adjourned for one week
upon respondent's request. Respondent again sought an adjournment,
which this court denied, and the matter was submitted.
By decision and order dated February 16, 2018, this court
determined that respondent had defaulted, granted petitioner's
application, directed respondent to vacate the subject property
within ten (10) days of being served with a copy of the order, and
denied petitioner's additional requests for relief without
prejudice. Respondent subsequently moved to vacate her default and
filed an order to show cause seeking to restrain enforcement of the
February 16, 2018 decision and order. The court signed the order
to show cause and heard oral argument on March 14, 2018. On April
5th
5, 2018, the court rendered a decision and order (the "April
Decision") denying respondent's motion to vacate and again
directing respondent to vacate the subject premises within ten (10)
days of being served with a copy of the order. Respondent filed
her appeal of that decision on May 8, 2018.
Currently pending is respondent's motion for a statutory stay
5th cross-
under CPLR 5519(a) (6) of the April Decision. eetitioner
moves requesting oral argument and seeking the following relief:
(a) directing respondent, in the event there is a stay, to render
and file an undertaking pursuant to CPLR 5519(a) (6) in the sum of
$2,400 per month made payable to Raymond E. Van Zwienen, as trustee
of the William H. Van Zwienen Revocable Trust, during the pendency
of respondent's appeal or, in the alternative, in the fixed sum of
$57,600, within twenty (20) days of service upon respondent by
overnight delivery of the order; (2) directing respondent to pay
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023
Decision Page 3
Estate of William H Van Zwienen, Deceased.
petitioner, as trustee, the sum of $31,920 plus interest,
representing respondent's use and occupancy of the premises from
March 30, 2017 through May 7, 2018; and (3) requiring respondent to
provide petitioner a copy of the current homeowners insurance
policy on the premises with proof of payment thereof, and to add
the Trust to the policy as an insured party. Upon submission of
the motions, petitioner's counsel withdrew his request for oral
argument.
Discussion
CPLR 5519 governs statutory appeals and allows for a stay,
without a court order, when "the appellant or moving party is in
possession or control of real property which the judgment or order
directs be conveyed or delivered, and an undertaking in a sum fixed
."
by the court of original instance is given . . . (CPLR
5519[a][6]). The court agrees with respondent that the statute
applies to the instant proceeding. As such, a stay automatically
takes effect upon the filing of an undertaking (CPLR 5519[a][6];
see A.K. Estates v. 454 Cent. Corp., 32 Misc3d 1233[A] [District
Ct, Nassau County]). However, "[w]hile the stay is automatic, the
amount of the undertaking to be fixed is generally left to the
discretion"
court's (APF 286 Mad LLC v. RIS Real Props., Inc., 43
Misc3d 1203[A] [Civil Court, New York County]).
In determining the appropriate amount of an undertaking, the
court should consider the amount needed to protect against waste
plus the value of the use and occupancy of the premises during
appeal (CPLR 5519[a][6]; Estate of Leon Port, 2002 NYLJ LEXIS 1900
[Sur Ct, Kings County]). Petitioner requests an undertaking of
$2,400 per month or in the fixed amount of $57,600, representing
$2,400 per month for an estimated 24-month appeal process.
Respondent does not dispute that an undertaking is required (Xu
Aff. % 6), but apparently seeks an offset for her payment of taxes,
insurance, utilities, and other costs associated with maintaining
and repairing the premises (Xu Aff. 11 7-10).
Typically, use and onnupancy represents the fair market value
or rental value of the premises (see Estate of Cameron, 2017 NYLJ
LEXIS 2680 [Sur Ct, Suffolk County]; Goldstein v. Held, 63 AD3d 881
[2d Dep't 2009]). In support of his application, petitioner has
submitted the affidavit of Phyllis Dinardo, a licensed real estate
broker (Parkas Aff. Ex. M). Ms. Dinardo estimates a monthly rental
value of $2,400 based upon a Comparative Market Analysis report
(Parkas Aff. Ex. M). Respondent fails to offer any evidence to the
contrary, and the court finds monthly payments of $2, 400
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023
Decision Page 4
Estate of William H Van Zwienen, Deceased.
appropriate (see A.K. Estates, supra; GRP Realty Corp. v. Baruck,
184 Misc2d 958 [Justice Court, Rockland County]).
Moreover, respondent's contributions toward carrying costs are
not only necessary to prevent against waste, but are specifically
required by the terms of the Second Trust Amendment (Parkas Aff.
Ex. C). In any event, respondent has not provided proof of bills
or the payment thereof (see Estate of Port, supra [refusing to
reduce use and occupancy valuation by amount of expenses due to
lack of evidence]). In fact, there is no proof of insurance on the
premises despite the respondent's allegations of payment and
5th
despite the court's April Decision ejecting respondent.
Accordingly, petitioner's cross-motion for an undertaking is
granted and the court sets an undertaking in the amount of $2,400
per month payable to Raymond E. Van Zwienen, as trustee of the
William H. Van Zwienen Revocable Trust, during the pendency of
5th
respondent's appeal from the April Decision. Within twenty (20)
days of service upon respondent by overnight delivery of the
present order, respondent shall also provide petitioner with proof
of insurance and immediately add the William H. Van Zwienen
Revocable Trust as an insured party to the policy.
Insofar as petitioner further moves for respondent's prior use
and occupancy of the premises, the court reserves decision until
such time as the appeal is complete and the petitioner takes sole
possession of the premises as trustee. Conceivably, a
determination regarding use and occupancy, at this juncture, would
require modification and an additional application by petitioner.
In an effort to conserve judicial resources, the court shall
reserve decision on use and occupancy.
Conclusion
Accordingly, it is
ORDERED that respondent's motion for a stay pursuant to CPLR
5519(a)(6) of the court's order of ejectment dated April 5, 2018
and the petitioner's cross-motion for an undertaking are granted;
and it is turther
ORDERED that the court sets an undertaking in the amount of
$2,400 per month, payable to Raymond E. Van Zwienen, as trustee of
the William H. Van Zwienen Revocable Trust, during the pendency of
respondent's appeal from the April 5, 2018 Decision and Order; and
it is further
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023
Decision Page 5
Estate of William H Van Zwienen, Deceased.
ORDERED that upon the filing of said undertaking, respondent's
requested stay pursuant to CPLR 5519(a) (6) shall take effect
conditional upon respondent's payments; and it is further
ORDERED that respondent furnish petitioner with a copy of the
homeowners insurance policy currently in force on the premises and
add the William H. Van Zwienen Revocable Trust as an insured party
to said policy within twenty (20) days of service upon her by
overnight delivery of the present order; and it is further
ORDERED that a decision on the amount of use and occupancy to
be awarded to petitioner be reserved until petitioner takes sole
possession of the premises.
John M. gier, J ., Surrogate
McCoyd, Parkas & Ronan LLP
Attorneys for Petitioner
1100 Franklin Avenue nug3
Garden City, NY 11530
suRUFÎO K U
Yan Ping Xu
Respondent
12 Mallar Avenue
MICHAEL CIPOLLINO
Bay Shore, NY 11706
CHIEF CLERK
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023
EXHIBIT F
Preview
FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023 EXHIBIT E FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023 FILED SURROGATE'S COURT SUFFOLK COUNTY . AUG 1 6 2018 SURROGATE'S COURT : SUFFOLK COUNTY _ _----------------------------_ _ _ _-_..--- MCHAEL C@OWm CHIEF CLERK In the Matter of the Petition of ) RAYMOND E. VAN ZWIENEN, as successor ) DECISION/ORDER trustee of the ) ) By: HON. JOHN M. CZYGIER, JR., ) .......................... ) ) Surrogate WILLIAM H. VAN ZWIENEN ) .......... REVOCABLE TRUST, ) ) Dated: Au6ru5T of,, h' ) ....................... to Recover Possession of the Real ) Property Located at 12 Mallar Avenue, in ) File #: 2017-778/B the Hamlet of Bay Shore, in the County of) ........... Suffolk, in the State of New York, from ) YAN PING XU. ) ________________________________________ In this miscellaneous proceeding to recover the possession of real property, the court has before it a motion brought by respondent Yan Ping Xu ("respondent") for a stay under CPLR 5519(a) (6) of this court's order of ejectment dated April 5, 2018. Respondent Raymond E. Van Zwienen ("respondent") opposes the motion and cross-moves seeking various relief. For the reasons that follow, respondent's motion is granted upon the filing of an undertaking and petitioner's cross-motion is granted in part, reserved in part. Backgrognd On December 22, 2017, petitioner Raymond E. Van Zwienen ("petitioner") commenced the instant proceeding seeking to recover possession of real property located at 12 Mallar Avenue, Bay Shore, New York (the "subject property"). Petitioner did so pursuant to his authority as successor trustee of the William H. Van Zwienen Revocable Trust (the "Trust"), and following an underlying contested probate proceeding. As is relevant here, decedent died testate on September 29, 2016, survived by his wife, Yan Ping Xu, the respondent herein, and his four children, including petitioner herein. His last will and testament, dated October 17, 2014 (the "2014 will"), bequeathed his tangible personal property to respondent and his four children equally, and the residue to the William H. Van Zwienen Revocable Trust, which he funded with the subject property. Under the original trust agreement, all property would pass to respondent upon decedent's death. By amendment dated December 16, 2013 (the "First Thust Amendment"), decedent removed respondent as a FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023 Decision Page 2 Estate of William H Van Zwienen, Deceased. beneficiary and named his four children equally. The second, and final, trust amendment, dated October 17, 2014 (the "Second Trust Amendment") gave respondent a six-month period to live in the subject property following decedent's death, after which the trustee is directed to sell the property and divide the proceeds equally amongst respondent and decedent's children. On March 3, 2017, petitioner proffered the 2014 will for probate, to which respondent filed objections pro se. The parties conducted some discovery and, after significant motion practice, this court ultimately granted petitioner probate and issued letters testamentary to him. Petitioner then commenced the instant proceeding, seeking to recover possession of the subject property and a judgment against respondent for her use and occupancy of the property from March 30, 2017 until the date of petitioner's exclusive possession. Citation issued for January 30, 2018, which the court adjourned for one week upon respondent's request. Respondent again sought an adjournment, which this court denied, and the matter was submitted. By decision and order dated February 16, 2018, this court determined that respondent had defaulted, granted petitioner's application, directed respondent to vacate the subject property within ten (10) days of being served with a copy of the order, and denied petitioner's additional requests for relief without prejudice. Respondent subsequently moved to vacate her default and filed an order to show cause seeking to restrain enforcement of the February 16, 2018 decision and order. The court signed the order to show cause and heard oral argument on March 14, 2018. On April 5th 5, 2018, the court rendered a decision and order (the "April Decision") denying respondent's motion to vacate and again directing respondent to vacate the subject premises within ten (10) days of being served with a copy of the order. Respondent filed her appeal of that decision on May 8, 2018. Currently pending is respondent's motion for a statutory stay 5th cross- under CPLR 5519(a) (6) of the April Decision. eetitioner moves requesting oral argument and seeking the following relief: (a) directing respondent, in the event there is a stay, to render and file an undertaking pursuant to CPLR 5519(a) (6) in the sum of $2,400 per month made payable to Raymond E. Van Zwienen, as trustee of the William H. Van Zwienen Revocable Trust, during the pendency of respondent's appeal or, in the alternative, in the fixed sum of $57,600, within twenty (20) days of service upon respondent by overnight delivery of the order; (2) directing respondent to pay FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023 Decision Page 3 Estate of William H Van Zwienen, Deceased. petitioner, as trustee, the sum of $31,920 plus interest, representing respondent's use and occupancy of the premises from March 30, 2017 through May 7, 2018; and (3) requiring respondent to provide petitioner a copy of the current homeowners insurance policy on the premises with proof of payment thereof, and to add the Trust to the policy as an insured party. Upon submission of the motions, petitioner's counsel withdrew his request for oral argument. Discussion CPLR 5519 governs statutory appeals and allows for a stay, without a court order, when "the appellant or moving party is in possession or control of real property which the judgment or order directs be conveyed or delivered, and an undertaking in a sum fixed ." by the court of original instance is given . . . (CPLR 5519[a][6]). The court agrees with respondent that the statute applies to the instant proceeding. As such, a stay automatically takes effect upon the filing of an undertaking (CPLR 5519[a][6]; see A.K. Estates v. 454 Cent. Corp., 32 Misc3d 1233[A] [District Ct, Nassau County]). However, "[w]hile the stay is automatic, the amount of the undertaking to be fixed is generally left to the discretion" court's (APF 286 Mad LLC v. RIS Real Props., Inc., 43 Misc3d 1203[A] [Civil Court, New York County]). In determining the appropriate amount of an undertaking, the court should consider the amount needed to protect against waste plus the value of the use and occupancy of the premises during appeal (CPLR 5519[a][6]; Estate of Leon Port, 2002 NYLJ LEXIS 1900 [Sur Ct, Kings County]). Petitioner requests an undertaking of $2,400 per month or in the fixed amount of $57,600, representing $2,400 per month for an estimated 24-month appeal process. Respondent does not dispute that an undertaking is required (Xu Aff. % 6), but apparently seeks an offset for her payment of taxes, insurance, utilities, and other costs associated with maintaining and repairing the premises (Xu Aff. 11 7-10). Typically, use and onnupancy represents the fair market value or rental value of the premises (see Estate of Cameron, 2017 NYLJ LEXIS 2680 [Sur Ct, Suffolk County]; Goldstein v. Held, 63 AD3d 881 [2d Dep't 2009]). In support of his application, petitioner has submitted the affidavit of Phyllis Dinardo, a licensed real estate broker (Parkas Aff. Ex. M). Ms. Dinardo estimates a monthly rental value of $2,400 based upon a Comparative Market Analysis report (Parkas Aff. Ex. M). Respondent fails to offer any evidence to the contrary, and the court finds monthly payments of $2, 400 FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023 Decision Page 4 Estate of William H Van Zwienen, Deceased. appropriate (see A.K. Estates, supra; GRP Realty Corp. v. Baruck, 184 Misc2d 958 [Justice Court, Rockland County]). Moreover, respondent's contributions toward carrying costs are not only necessary to prevent against waste, but are specifically required by the terms of the Second Trust Amendment (Parkas Aff. Ex. C). In any event, respondent has not provided proof of bills or the payment thereof (see Estate of Port, supra [refusing to reduce use and occupancy valuation by amount of expenses due to lack of evidence]). In fact, there is no proof of insurance on the premises despite the respondent's allegations of payment and 5th despite the court's April Decision ejecting respondent. Accordingly, petitioner's cross-motion for an undertaking is granted and the court sets an undertaking in the amount of $2,400 per month payable to Raymond E. Van Zwienen, as trustee of the William H. Van Zwienen Revocable Trust, during the pendency of 5th respondent's appeal from the April Decision. Within twenty (20) days of service upon respondent by overnight delivery of the present order, respondent shall also provide petitioner with proof of insurance and immediately add the William H. Van Zwienen Revocable Trust as an insured party to the policy. Insofar as petitioner further moves for respondent's prior use and occupancy of the premises, the court reserves decision until such time as the appeal is complete and the petitioner takes sole possession of the premises as trustee. Conceivably, a determination regarding use and occupancy, at this juncture, would require modification and an additional application by petitioner. In an effort to conserve judicial resources, the court shall reserve decision on use and occupancy. Conclusion Accordingly, it is ORDERED that respondent's motion for a stay pursuant to CPLR 5519(a)(6) of the court's order of ejectment dated April 5, 2018 and the petitioner's cross-motion for an undertaking are granted; and it is turther ORDERED that the court sets an undertaking in the amount of $2,400 per month, payable to Raymond E. Van Zwienen, as trustee of the William H. Van Zwienen Revocable Trust, during the pendency of respondent's appeal from the April 5, 2018 Decision and Order; and it is further FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023 Decision Page 5 Estate of William H Van Zwienen, Deceased. ORDERED that upon the filing of said undertaking, respondent's requested stay pursuant to CPLR 5519(a) (6) shall take effect conditional upon respondent's payments; and it is further ORDERED that respondent furnish petitioner with a copy of the homeowners insurance policy currently in force on the premises and add the William H. Van Zwienen Revocable Trust as an insured party to said policy within twenty (20) days of service upon her by overnight delivery of the present order; and it is further ORDERED that a decision on the amount of use and occupancy to be awarded to petitioner be reserved until petitioner takes sole possession of the premises. John M. gier, J ., Surrogate McCoyd, Parkas & Ronan LLP Attorneys for Petitioner 1100 Franklin Avenue nug3 Garden City, NY 11530 suRUFÎO K U Yan Ping Xu Respondent 12 Mallar Avenue MICHAEL CIPOLLINO Bay Shore, NY 11706 CHIEF CLERK FILED: SUFFOLK COUNTY CLERK 04/03/2023 11:01 AM INDEX NO. 206004/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/03/2023 EXHIBIT F