Preview
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023
EXHIBIT C
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023
APR 0 5 2018
SURROGATE'
S COURT : SUFFOLK COUNTY
----.-----.._...---------....___-....----------- MICHAEL OlPOLUNO
In CHtEFOLERK
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:
) . . . . . . .... . . .. . . . . . . . . . . . .
to Recover.Possession of the Real )
. Property Located at 12 Mallar in File #: 2017-778 /B
Avenue, )
the Hamlet of Bay Shore·, in the of) . . . . . . . - . . .
County
Suffolk, in the State of New York, from )
YAN PING XU. )
--------------------------------________
The court has before it a motion, brought simultaneously with
an order to show eause,· Yan Xu
whereby respondent, Ping
("respondent"), seeks to vacate her default in this proceeding and
to dismiss the petition. For the reasons discus sed herein, the
motion is denied.
Backaround
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 he.rein, 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
equallýy 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 Decembèr 16, 2013 (the
"First; . Trust Amendment"), decedent removed respo.ndent as a
beneficiary and named his four children equally. The second, and
final, trust amendment, dated October 17, 2014 (the "Se ond Trust
Amendment") gave respondent a six-month period to live in the
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023
Decision Page 2
Estate of William H Van Zwienen, Deceased.
subject property following decedent's death, after which the
trustee i.s directed to sell the and divide the proceeds
property
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 alleging that
the petitioner is ineligible to serve as and that she is
fiduciary
entitled to a set-off of decedent's personal property as exempt
property. On May 3, 2017, the parties .entered into a pre-trial
order in the probate proceeding setting forth a discovery schedule.
Several disputes subsequently arose regarding the pre-trial order
itself and the parties'
compliance therewith. For example, on
August respondent moved to reargue or vacate the pre-
16, 2017,
trial order, and petitioner thereafter cross-moved for sanctions
pursuant t'o CPLR .3126(3), reqtiesting that the court strike the
objections to probate due to respondent's lack of discovery
compliance. By decision and order dated October 5, 2017, this
court essentially denied both motions,.but gave respondent thirty
(30) days in which to provide her of non-
discovery, noting history
compliance.
Further motion practice continued, and on November 6, 2017,
re spondent moved to reconsider the October 5, 2017 decision and
order, as well as an additional decision and·order from October 12,
2017.. Again, petitioner renewed his motion for sanctions. On
November 30, 2017, this court denied respondent's motion for
reargument and granted petitioner's motion for sanctions.. In so
holding,. the court found that respondent had displayed a pattern of
ignoring or delaying the terms to which she agreed in the pre-trial
order. Accordingly, letters testamentary issued to petitioner on
December 1, 2017, Respondent. thereafter moved for reargument of
30th denied on
the November decision and order, which the court
Ma-rch 29, 2018. .
Petitioner then commenced the instant proceed1ng, .1n which he
seeks to recover possession of the subject property and a judgment
against respondent for her use and occupancy of the property from
March 30, 2017 uDtil the date of petitioner's exclusive possession.
Citation issued for Januairy 30, 2018, which respondent sought to
adjourn to April 10, 2018, Petitioner's counsel consented to a one
week·adjournment, and the court placed the matter on the process
calendar for February 6, 2018. Vespondent again sent written
correspondence to the court and counsel seeking an adjournment.
However, respondent did not appear on February 6. The court, and
petitioner's counsel, specifically noted respondent's additional
adjournment request, but submitted the matter.
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023
- .
Decision Page 3
Estate of William H Van Zwienen, Deceased.
By decision and order dated February 16, 2010, this cotirt
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 now seeks to vacate her default. Simultaneous with
her motion, respondent also filed an order to show cause, seeking
to restrain enforcement of the February 16, 2018 decision and
order. This court signed the order to show cause, granting the
temporary restraining order, and placed the matter on the calendar
for oral argument. The parties appeared on March 14, 2018 for the
argument, and the court reserved decision, continuing the temporary
restraining order-pending resolution of the instant motion.
Discussion
To vacate a default, an individual is required to show "'(1)
a valid excuse and the absence of willfulness, and (2) a
meritorious claim which is not established by allegations in
·form'"
conclusory (Matter of Maxwell, 13 AD3d 630 [quoting Matter
of Wang, 5 AD3d 785]; see also Anolick s. Travelers Ins. Co., 63
AD2d 665 [2d Dep't 1978]).
Respondent asserts that she has a reasonable excuse for
issues"
defaulting because she has been suffering from "health (Xu
doctors'
Aff. 1 3). In support of her motion, she has attached two
notes (Xu Aff. Ex. C). The first indicates that respondent was
seen for a physical exam, although the date of the examination.is
somewhat unclear (Xu Aff. Ex, C). The s econd note shows that a
test" 2018 (Xu Aff, Ex.
"radiological was performed on February 6,
C).
Respondent has not further elaborated upon the nature of any
alleged health conditions, nor has she articulated a reason as to
why these examinations were necessary on the given days. While
illness constitute a reasonable excuse, mere appointments for
may
examinations are insufficient ( seer. e.g. , Williams v. Moberg &
Assocs. , P.L.L.C., 40 Misc3d 1230[A] [Sup Ct, Queens County]
(holding that there was no proof that counsel's condition
incapacitated him to . such a degree that he could not take
appropriate action or appear as scheduled]). Respondent has failed
to demonstrate how her physical condition ·prevented her from
on 30 or February 6, or that she has any
appearing January
particular illness that would cause her to be unable to attend
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NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023
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Estate of William H Van Zwienen, Deceased.
court or file a responsive pleading ( see Tuthill Fin. , L. P. v.
jeta, 102 AD3d 765 [2d Dep't 2013]; In re Nathalie A., 145 AD2d
629 [2d Dep't 1988; Matter of Olney, 2009 NY Misc LEXIS 4467 [Sur
Ct, Nassau County]).
Rather, respondent has indicated, in. her motion papers and
during oral argument on her order to show cause, that she assumed
that she would hear from the court and, as such, did not believe it
necessary to make an appearance or pursue adjournment further (Xu
Aff. 11 2-3). Such action, moreover, comes on the heels of an
underlying probate proceeding in which the court sanctioned
respondent for her delay tactics. Accordingly, respondent has
failed to demonstrate a valid excuse for her default in this
matter.
Moreover, even if there were a valid excuse, respondent has
not shown a meritorious claim. Beginning, first, with her
contentions regarding jurisdictional issues, respondent has not
demonstrated that this court lacks subject matter jurisdiction or
that any procedural defects merit vacatur, Respondent asserts that
"force"
this court lacks subject matter jurisdiction to her from
the marital residence due to established law that "favors a
spouse"
surviving and under the "New York homestead exemption
5206(b)" the.
statute CPLR (Xu Memo. at 12). However, statutes .to
which respondent cites are inapplicable to the case at bar, and the
law i.s clear that surrogate's courts have broad jurisdiction over
matters relating to the affairs of a decedent ( see SCPA 201; Estate
of Piccione, 57 NY2d 278 [1982]; In re Goodwin, 2016 NY Misc LEXIS
527. [Sur Ct, Queens County]), including ejectment proceedings, even
when the ejectment is of a distributee such as a spouse ( see Estate
of Piccione, supra; In re Goodwin, supra ; In re McDonald, 114
Misc2d 182 [Sur Ct, Delaware County]).
Moreover, while respondent seems to assert that she cannot
possibly be subject to the instant action due to her status as
spouse, in fact she and petitioner are the only necessary parties.
Contrary to her assertions, petitioner's siblings are not
indispensable parties herein- (see CPLR 1001[a]; NY CLS RPAPL 631;
NY CLS RPAPL 1511). The trust is the sole alleged owrier of the
subject property, and decedent's children do not claim any
ownership. interest or title thereto individually. Accordingly,
respondent is the necessary party and she has not shown a
only
meritorious claim in this, or any other jurisdictional or
procedural, respect (see Estate of Deutsch, 2007 NÝ Misc LEXIS 4513
[Sur Ct, Kings County]; Beyers v.. Grande, 58 Misc 398 [S.up Ct, New
York County]).
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023
Decision Page 5
Estate of William H Van Zwienen, Deceased.
In addition, respondent cites to SCPA 401(3) and 22 NYCRR
207.9 as proof that the petition is defective. SCPA 401(3) and 22
NYCRR 207.9 pertain to authorizations where the client is
attorney
a non-domiciliary or has not been served with process
personally
within the state. Though respondent is correct that thei petitioner
is a non-domiciliary, SCPA 401(3) is (see SCPA 401[3]
discretionary
that "may"
stating the court require authorization]). Further, 22
NYCRR 207.9 authority,"
requires "acknowledged evidence of
"[u]nless Surrogate"
otherwise directed by the (22 NYCRR 207.9[b]).
Here, the petitioner has not only signed the instant petition, but
has been represented by McCoyd, Parkas & Ronan LLP throughout most
of the underlying contested probate proceeding (see In re Martin's
T4ill, 29 Misc2d 274 [Sur Ct, Kings Countyl). As such, the court is
satisfied that further proof of authorization is unnecessary ( see
Estate of Bebirian, 1996 NYLJ LEXIS 4744 [Sur Ct, Suffolk County]
["The court being otherwise satisfied as to the relationship
between counsel and client when the pleadings were filed, it will
not now make a retroactive finding thaf such representation was
unauthorized or improper."]).
In a further attempt to demonstrate a meritorious claim,
respondent asserts that neither trust amendment
Preview
FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023 EXHIBIT C FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023 APR 0 5 2018 SURROGATE' S COURT : SUFFOLK COUNTY ----.-----.._...---------....___-....----------- MICHAEL OlPOLUNO In CHtEFOLERK 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: ) . . . . . . .... . . .. . . . . . . . . . . . . to Recover.Possession of the Real ) . Property Located at 12 Mallar in File #: 2017-778 /B Avenue, ) the Hamlet of Bay Shore·, in the of) . . . . . . . - . . . County Suffolk, in the State of New York, from ) YAN PING XU. ) --------------------------------________ The court has before it a motion, brought simultaneously with an order to show eause,· Yan Xu whereby respondent, Ping ("respondent"), seeks to vacate her default in this proceeding and to dismiss the petition. For the reasons discus sed herein, the motion is denied. Backaround 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 he.rein, 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 equallýy 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 Decembèr 16, 2013 (the "First; . Trust Amendment"), decedent removed respo.ndent as a beneficiary and named his four children equally. The second, and final, trust amendment, dated October 17, 2014 (the "Se ond Trust Amendment") gave respondent a six-month period to live in the FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023 Decision Page 2 Estate of William H Van Zwienen, Deceased. subject property following decedent's death, after which the trustee i.s directed to sell the and divide the proceeds property 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 alleging that the petitioner is ineligible to serve as and that she is fiduciary entitled to a set-off of decedent's personal property as exempt property. On May 3, 2017, the parties .entered into a pre-trial order in the probate proceeding setting forth a discovery schedule. Several disputes subsequently arose regarding the pre-trial order itself and the parties' compliance therewith. For example, on August respondent moved to reargue or vacate the pre- 16, 2017, trial order, and petitioner thereafter cross-moved for sanctions pursuant t'o CPLR .3126(3), reqtiesting that the court strike the objections to probate due to respondent's lack of discovery compliance. By decision and order dated October 5, 2017, this court essentially denied both motions,.but gave respondent thirty (30) days in which to provide her of non- discovery, noting history compliance. Further motion practice continued, and on November 6, 2017, re spondent moved to reconsider the October 5, 2017 decision and order, as well as an additional decision and·order from October 12, 2017.. Again, petitioner renewed his motion for sanctions. On November 30, 2017, this court denied respondent's motion for reargument and granted petitioner's motion for sanctions.. In so holding,. the court found that respondent had displayed a pattern of ignoring or delaying the terms to which she agreed in the pre-trial order. Accordingly, letters testamentary issued to petitioner on December 1, 2017, Respondent. thereafter moved for reargument of 30th denied on the November decision and order, which the court Ma-rch 29, 2018. . Petitioner then commenced the instant proceed1ng, .1n which he seeks to recover possession of the subject property and a judgment against respondent for her use and occupancy of the property from March 30, 2017 uDtil the date of petitioner's exclusive possession. Citation issued for Januairy 30, 2018, which respondent sought to adjourn to April 10, 2018, Petitioner's counsel consented to a one week·adjournment, and the court placed the matter on the process calendar for February 6, 2018. Vespondent again sent written correspondence to the court and counsel seeking an adjournment. However, respondent did not appear on February 6. The court, and petitioner's counsel, specifically noted respondent's additional adjournment request, but submitted the matter. FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023 - . Decision Page 3 Estate of William H Van Zwienen, Deceased. By decision and order dated February 16, 2010, this cotirt 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 now seeks to vacate her default. Simultaneous with her motion, respondent also filed an order to show cause, seeking to restrain enforcement of the February 16, 2018 decision and order. This court signed the order to show cause, granting the temporary restraining order, and placed the matter on the calendar for oral argument. The parties appeared on March 14, 2018 for the argument, and the court reserved decision, continuing the temporary restraining order-pending resolution of the instant motion. Discussion To vacate a default, an individual is required to show "'(1) a valid excuse and the absence of willfulness, and (2) a meritorious claim which is not established by allegations in ·form'" conclusory (Matter of Maxwell, 13 AD3d 630 [quoting Matter of Wang, 5 AD3d 785]; see also Anolick s. Travelers Ins. Co., 63 AD2d 665 [2d Dep't 1978]). Respondent asserts that she has a reasonable excuse for issues" defaulting because she has been suffering from "health (Xu doctors' Aff. 1 3). In support of her motion, she has attached two notes (Xu Aff. Ex. C). The first indicates that respondent was seen for a physical exam, although the date of the examination.is somewhat unclear (Xu Aff. Ex, C). The s econd note shows that a test" 2018 (Xu Aff, Ex. "radiological was performed on February 6, C). Respondent has not further elaborated upon the nature of any alleged health conditions, nor has she articulated a reason as to why these examinations were necessary on the given days. While illness constitute a reasonable excuse, mere appointments for may examinations are insufficient ( seer. e.g. , Williams v. Moberg & Assocs. , P.L.L.C., 40 Misc3d 1230[A] [Sup Ct, Queens County] (holding that there was no proof that counsel's condition incapacitated him to . such a degree that he could not take appropriate action or appear as scheduled]). Respondent has failed to demonstrate how her physical condition ·prevented her from on 30 or February 6, or that she has any appearing January particular illness that would cause her to be unable to attend FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023 Decision Page 4 Estate of William H Van Zwienen, Deceased. court or file a responsive pleading ( see Tuthill Fin. , L. P. v. jeta, 102 AD3d 765 [2d Dep't 2013]; In re Nathalie A., 145 AD2d 629 [2d Dep't 1988; Matter of Olney, 2009 NY Misc LEXIS 4467 [Sur Ct, Nassau County]). Rather, respondent has indicated, in. her motion papers and during oral argument on her order to show cause, that she assumed that she would hear from the court and, as such, did not believe it necessary to make an appearance or pursue adjournment further (Xu Aff. 11 2-3). Such action, moreover, comes on the heels of an underlying probate proceeding in which the court sanctioned respondent for her delay tactics. Accordingly, respondent has failed to demonstrate a valid excuse for her default in this matter. Moreover, even if there were a valid excuse, respondent has not shown a meritorious claim. Beginning, first, with her contentions regarding jurisdictional issues, respondent has not demonstrated that this court lacks subject matter jurisdiction or that any procedural defects merit vacatur, Respondent asserts that "force" this court lacks subject matter jurisdiction to her from the marital residence due to established law that "favors a spouse" surviving and under the "New York homestead exemption 5206(b)" the. statute CPLR (Xu Memo. at 12). However, statutes .to which respondent cites are inapplicable to the case at bar, and the law i.s clear that surrogate's courts have broad jurisdiction over matters relating to the affairs of a decedent ( see SCPA 201; Estate of Piccione, 57 NY2d 278 [1982]; In re Goodwin, 2016 NY Misc LEXIS 527. [Sur Ct, Queens County]), including ejectment proceedings, even when the ejectment is of a distributee such as a spouse ( see Estate of Piccione, supra; In re Goodwin, supra ; In re McDonald, 114 Misc2d 182 [Sur Ct, Delaware County]). Moreover, while respondent seems to assert that she cannot possibly be subject to the instant action due to her status as spouse, in fact she and petitioner are the only necessary parties. Contrary to her assertions, petitioner's siblings are not indispensable parties herein- (see CPLR 1001[a]; NY CLS RPAPL 631; NY CLS RPAPL 1511). The trust is the sole alleged owrier of the subject property, and decedent's children do not claim any ownership. interest or title thereto individually. Accordingly, respondent is the necessary party and she has not shown a only meritorious claim in this, or any other jurisdictional or procedural, respect (see Estate of Deutsch, 2007 NÝ Misc LEXIS 4513 [Sur Ct, Kings County]; Beyers v.. Grande, 58 Misc 398 [S.up Ct, New York County]). FILED: SUFFOLK COUNTY CLERK 05/15/2023 07:51 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/15/2023 Decision Page 5 Estate of William H Van Zwienen, Deceased. In addition, respondent cites to SCPA 401(3) and 22 NYCRR 207.9 as proof that the petition is defective. SCPA 401(3) and 22 NYCRR 207.9 pertain to authorizations where the client is attorney a non-domiciliary or has not been served with process personally within the state. Though respondent is correct that thei petitioner is a non-domiciliary, SCPA 401(3) is (see SCPA 401[3] discretionary that "may" stating the court require authorization]). Further, 22 NYCRR 207.9 authority," requires "acknowledged evidence of "[u]nless Surrogate" otherwise directed by the (22 NYCRR 207.9[b]). Here, the petitioner has not only signed the instant petition, but has been represented by McCoyd, Parkas & Ronan LLP throughout most of the underlying contested probate proceeding (see In re Martin's T4ill, 29 Misc2d 274 [Sur Ct, Kings Countyl). As such, the court is satisfied that further proof of authorization is unnecessary ( see Estate of Bebirian, 1996 NYLJ LEXIS 4744 [Sur Ct, Suffolk County] ["The court being otherwise satisfied as to the relationship between counsel and client when the pleadings were filed, it will not now make a retroactive finding thaf such representation was unauthorized or improper."]). In a further attempt to demonstrate a meritorious claim, respondent asserts that neither trust amendment