Preview
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023
EXHIBIT H
FILED: Case2:19-cv-01362-JMA-ARL
SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
18-6 Filed05/06/19 Document Page l of 4 PagelD #: 88
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023
$URROGATE'S COURT : SUFFOLK COUNTY
Pr eedin Will o SUR
P ate o
) . DECISION
03 2016
DEC JR.
) By: HON. JOHN M. CZYGIER,
CIPOLLINO
..........................
MICHAEL
CHIEF CLERK
) Surrogate
WILLIAM H VAN ) .........
ZWIENEN,
) . Dated: DEC 03 2018
) .......................
) File #: 2017-778/B
Deceased. ) ....... . . . . . .
__ ___________________---____________
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") seeking reargument of this
court's October 10, 2018 decision and order (the "October
Decision") and granting respondent a stay. Petitioner, Raymond E.
Van Zwienen ("petitioner") opposes. For the reasons that follow,
objectant's motion is denied.
Background
The court assumes familiarity with the procedural history of
this case, which is more fully delineated in this court's numerous
prior orders. As is relevant here, decedent, William H. Van
Zwienen ("decedent") died on September 29, 2016, survived by his
spouse, respondent herein, and his four children, including
petitioner herein.
Decedent/s last will and testament, dated October 17, 2014,
bequeathed his tangible personal property to respondent and his
four children equally, and the residue to the William H. Van
Zwienen Revocable Trust (the "Trust"). As provided under the most
recent trust amendment, respondent was given a six-month period to
live in decedent's residence, 12 Mallar Avenue, Bay Shore, New York
(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 four children.
Following a contested probate proceeding, this court granted
. probate of the propounded instrument and issued letters
testamentary to petitioner. Pursuant to his authority thereto, and
as successor trustee of the petitioner then commeIced the
Trust,
instant proceeding on December 22, 2017, seeking to recover
82 .
FILED: Case2.19-cv-01362-JMA-ARL
SUFFOLK COUNTY CLERK Document
05/15/2023 07:51 PM INDEX NO. 206004/2022
18-6 Filed 05/06/19 Page 2 of 4 PagelD #: 89
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023
Decision - . Page 2
Estate of William H Van Zwienen, Deceased.
possession of the subject property and a judgment against
respondent for her use and occupancy of the premises . By decision
and order dated February 16, 2018, this court determined that
respondent had defaulted in this matter, granted petitioner's
application, and directed respondent to vacate the subject property
within ten (10) days of being served with a copy of the order.
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
5, 2018, the court rendered a decision and order (the "April
Order") 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.
. On July 2, 2018, during the pendency of her appeal, respondent
moved this court for a statutory stay pursuant to CPLR 5519(a) (6).
By decision and order dated August 16, 2018 (the "August Order"),
the undersigned granted respondent's motion for a stay conditioned
upon the filing of an undertaking in the amount of $2,400 per
month, payable to petitioner, during the pendency of her appeal
from the April Order.
To date, respondent has not filed said undertaking, She has,
however, filed a motion to renew and reargue the August Order,
which is returnable on January 15, 2019. Respondent also submitted
an order to show cause seeking a restraining order and stay of the
proceedings. By decision and order dated October 10, 2018 (the
"October Order"), this court returned respondent's order-to show
cause without signature. The court therein reiterated the holding
of the August Order, noting that respondent's motion to renews and.
reargue the August Order was also pending. As such, the court
declined to entertain the order to show cause, as it was again
requesting the same relief.
Currently pending is respondent's motion to reargue the
October Order, in which she seeks an order "staying the
undertaking" Notice
and restraining her eviction ( see of Motion).
Petitioner opposes.-
Applicable Law and Discussion
CPLR 2221(d) (2) requires that a motion to reargue be "based
upon niatters of fact or law allegedly overlooked or misapprehended
motion."
by the court iri determinirïg the prior Its purpose is to
. . 83
FILED: SUFFOLK COUNTY CLERK Document
05/15/2023 07:51 PM INDEX NO. 206004/2022
:19-cv-01362-JMA-ARL 18-6 Filed 05/06/19 Page 3 of 4 PagelD #: 90
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023
Decision Page 3
Estate of William H Van Zwienen, Deceased.
the court that it was wrong, "not to serve as a vehicle to
convince
the unsuccessful party to argue once again the very
permit decided"
ioIs Previously ( Foley v. Roche, 68 AD2d 558 [1st
e
19793 ; see also Richardson v. Lindenbaum & Young, 14 Misc3d
[Sup Ct, Kings County]).
À]
Pħ best the court can discern, respondent asserts that the
erred in finding that the relief was duplicative and in
dting her order to show cause because the relief requested
n the order to show cause is different from that requested
Hin her motion to renew and reargue the August Order (see Aff.
$upport %¶ 6-7). The difference, she claims, is that the motion
'
o renew and reargue the August Order seeks to stay "the
order"
dertaking matter and issue a restraining during the
endency of her motion (Reply Aff. 5 2) while the order to show
ause sought a stay of enforcement pending her appeal. Respondent
has failed to attach a copy of her proposed order to show cause and
documents in support, and the October Order makes clear that
respondent's entire submission was returned to her (see October
Order). As such, the court cannot compare the proposed order to
show cause with the motion to renew and reargue the August Order.
Nonetheless, respondent's argument is one of semantics To
"stay"
the undertaking and issue a restraining order is to..
effectively stay enforcement. Though couched slightly differently,
each submission seeks an unconditional stay for a period of time.
Both petitioner and respondent have previously presented their
arguments at length, many of which respondent repeats in the
instant motion, and this court has ruled on the matter of a stay.
As such, the October Order appropriately declined to entertain
respondent's duplicative relief.
Respondent' October Order
s further assertion that the
contradicts the court's practice is equally unavailing (see Aff. in
Support 1 8). In making this assertion, respondent's argument
"1"
abruptly stops, and her affidavit in support begins on page and
"3." appears suggest
continues on page In any event, respondent to
that, by signing an order to show cause once in this matter, that
it is the court's practice to necessarily sign orders to show cause
and grant orders. Of course, the procedural
temporary restraining
posture when this court signed an order to show cause earlier this
year differs from that seven (7) months later. While
drastically
the court found a order to be appropriate in
temporary restraining
March of the time of the October Order, respondent'had
2018, by
presented her arguments a and undertakincj, and the
regarding stay
court had ruled on the matter. Accordingly, resporident h
already
failed to demonstra.te that this court overlooked opmisapp d
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
Case219-cv-01362-JMA-ARL Document 18-6 Filed 08/06/15 âge 4 of 4 PagelD #: 91
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023
Dec'ision Page 4
Estate of William H Van Zwienen, Deceased.
any matters of law or fact in the October Order and her motion is
denied.
Conclusion
For the foregoing reasons, respondent's motion is denied.
McCoyd, Parkas & Ronan LLP
By: Bill P. .Parkas, Esq.
. Attorneys for Petitioner
1100 Franklin Avenue O
S R
The Penthouse
Garden City, NY 11530
03 201B
DEC
Yan Ping Xu
Respondent MICHAÒL CIPOLLINO
12 Mallar Avenue CHIEFOLERK
Bay Shore, NY 11706
.. - -
85
Preview
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023 EXHIBIT H FILED: Case2:19-cv-01362-JMA-ARL SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 18-6 Filed05/06/19 Document Page l of 4 PagelD #: 88 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023 $URROGATE'S COURT : SUFFOLK COUNTY Pr eedin Will o SUR P ate o ) . DECISION 03 2016 DEC JR. ) By: HON. JOHN M. CZYGIER, CIPOLLINO .......................... MICHAEL CHIEF CLERK ) Surrogate WILLIAM H VAN ) ......... ZWIENEN, ) . Dated: DEC 03 2018 ) ....................... ) File #: 2017-778/B Deceased. ) ....... . . . . . . __ ___________________---____________ 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") seeking reargument of this court's October 10, 2018 decision and order (the "October Decision") and granting respondent a stay. Petitioner, Raymond E. Van Zwienen ("petitioner") opposes. For the reasons that follow, objectant's motion is denied. Background The court assumes familiarity with the procedural history of this case, which is more fully delineated in this court's numerous prior orders. As is relevant here, decedent, William H. Van Zwienen ("decedent") died on September 29, 2016, survived by his spouse, respondent herein, and his four children, including petitioner herein. Decedent/s last will and testament, dated October 17, 2014, bequeathed his tangible personal property to respondent and his four children equally, and the residue to the William H. Van Zwienen Revocable Trust (the "Trust"). As provided under the most recent trust amendment, respondent was given a six-month period to live in decedent's residence, 12 Mallar Avenue, Bay Shore, New York (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 four children. Following a contested probate proceeding, this court granted . probate of the propounded instrument and issued letters testamentary to petitioner. Pursuant to his authority thereto, and as successor trustee of the petitioner then commeIced the Trust, instant proceeding on December 22, 2017, seeking to recover 82 . FILED: Case2.19-cv-01362-JMA-ARL SUFFOLK COUNTY CLERK Document 05/15/2023 07:51 PM INDEX NO. 206004/2022 18-6 Filed 05/06/19 Page 2 of 4 PagelD #: 89 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023 Decision - . Page 2 Estate of William H Van Zwienen, Deceased. possession of the subject property and a judgment against respondent for her use and occupancy of the premises . By decision and order dated February 16, 2018, this court determined that respondent had defaulted in this matter, granted petitioner's application, and directed respondent to vacate the subject property within ten (10) days of being served with a copy of the order. 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 5, 2018, the court rendered a decision and order (the "April Order") 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. . On July 2, 2018, during the pendency of her appeal, respondent moved this court for a statutory stay pursuant to CPLR 5519(a) (6). By decision and order dated August 16, 2018 (the "August Order"), the undersigned granted respondent's motion for a stay conditioned upon the filing of an undertaking in the amount of $2,400 per month, payable to petitioner, during the pendency of her appeal from the April Order. To date, respondent has not filed said undertaking, She has, however, filed a motion to renew and reargue the August Order, which is returnable on January 15, 2019. Respondent also submitted an order to show cause seeking a restraining order and stay of the proceedings. By decision and order dated October 10, 2018 (the "October Order"), this court returned respondent's order-to show cause without signature. The court therein reiterated the holding of the August Order, noting that respondent's motion to renews and. reargue the August Order was also pending. As such, the court declined to entertain the order to show cause, as it was again requesting the same relief. Currently pending is respondent's motion to reargue the October Order, in which she seeks an order "staying the undertaking" Notice and restraining her eviction ( see of Motion). Petitioner opposes.- Applicable Law and Discussion CPLR 2221(d) (2) requires that a motion to reargue be "based upon niatters of fact or law allegedly overlooked or misapprehended motion." by the court iri determinirïg the prior Its purpose is to . . 83 FILED: SUFFOLK COUNTY CLERK Document 05/15/2023 07:51 PM INDEX NO. 206004/2022 :19-cv-01362-JMA-ARL 18-6 Filed 05/06/19 Page 3 of 4 PagelD #: 90 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023 Decision Page 3 Estate of William H Van Zwienen, Deceased. the court that it was wrong, "not to serve as a vehicle to convince the unsuccessful party to argue once again the very permit decided" ioIs Previously ( Foley v. Roche, 68 AD2d 558 [1st e 19793 ; see also Richardson v. Lindenbaum & Young, 14 Misc3d [Sup Ct, Kings County]). À] Pħ best the court can discern, respondent asserts that the erred in finding that the relief was duplicative and in dting her order to show cause because the relief requested n the order to show cause is different from that requested Hin her motion to renew and reargue the August Order (see Aff. $upport %¶ 6-7). The difference, she claims, is that the motion ' o renew and reargue the August Order seeks to stay "the order" dertaking matter and issue a restraining during the endency of her motion (Reply Aff. 5 2) while the order to show ause sought a stay of enforcement pending her appeal. Respondent has failed to attach a copy of her proposed order to show cause and documents in support, and the October Order makes clear that respondent's entire submission was returned to her (see October Order). As such, the court cannot compare the proposed order to show cause with the motion to renew and reargue the August Order. Nonetheless, respondent's argument is one of semantics To "stay" the undertaking and issue a restraining order is to.. effectively stay enforcement. Though couched slightly differently, each submission seeks an unconditional stay for a period of time. Both petitioner and respondent have previously presented their arguments at length, many of which respondent repeats in the instant motion, and this court has ruled on the matter of a stay. As such, the October Order appropriately declined to entertain respondent's duplicative relief. Respondent' October Order s further assertion that the contradicts the court's practice is equally unavailing (see Aff. in Support 1 8). In making this assertion, respondent's argument "1" abruptly stops, and her affidavit in support begins on page and "3." appears suggest continues on page In any event, respondent to that, by signing an order to show cause once in this matter, that it is the court's practice to necessarily sign orders to show cause and grant orders. Of course, the procedural temporary restraining posture when this court signed an order to show cause earlier this year differs from that seven (7) months later. While drastically the court found a order to be appropriate in temporary restraining March of the time of the October Order, respondent'had 2018, by presented her arguments a and undertakincj, and the regarding stay court had ruled on the matter. Accordingly, resporident h already failed to demonstra.te that this court overlooked opmisapp d FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 Case219-cv-01362-JMA-ARL Document 18-6 Filed 08/06/15 âge 4 of 4 PagelD #: 91 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 05/15/2023 Dec'ision Page 4 Estate of William H Van Zwienen, Deceased. any matters of law or fact in the October Order and her motion is denied. Conclusion For the foregoing reasons, respondent's motion is denied. McCoyd, Parkas & Ronan LLP By: Bill P. .Parkas, Esq. . Attorneys for Petitioner 1100 Franklin Avenue O S R The Penthouse Garden City, NY 11530 03 201B DEC Yan Ping Xu Respondent MICHAÒL CIPOLLINO 12 Mallar Avenue CHIEFOLERK Bay Shore, NY 11706 .. - - 85