In this miscellaneous proceeding, decedent’s sons seek damages and other relief in connection with the sale of real property co-owned by decedent and a trust established under the will of his father, David Phillips, of which decedent was also a beneficiary and co-trustee. Respondents are the fiduciary of decedent’s estate, the surviving co-trustee (a bank), and the purchasers of the realty.All respondents have filed motions with respect to the petition. However, this decision is directed only to the motion of respondent William Stelyn, as executor of the estate of decedent’s post-deceased wife, Rosemary Phillips. Stelyn seeks dismissal of the petition (CPLR 3211) and sanctions in the form of legal fees under Rule 130-1:1 (22 NYCRR 130-1:1) for the filing of a “frivolous” petition.Movant was named as a respondent even though the petition does not seek any relief against Rosemary’s estate. Notwithstanding the availability of CPLR §1003, which permits the court to drop a party for “misjoinder,” movant seeks, on the merits, dismissal of petitioners’ claims against other respondents. Movant does so in order to protect the interests of Rosemary’s estate as the beneficiary of her husband’s estate. But the SCPA contemplates that, in litigation involving an estate, except in limited circumstances not applicable here (see e.g. SCPA 1809), protection of the estate’s beneficiaries falls to the estate fiduciary, who ultimately will be accountable to the beneficiaries for any breach of fiduciary duty. If it were otherwise, every proceeding in which an estate is a party would be needlessly burdened by the joinder of not only the executor, but also, every beneficiary of the estate.Movant’s joinder in this proceeding is a classic example of the type of procedural overkill that results from an excess of caution. Petitioners have acknowledged as much by filing a Notice of Discontinuance pursuant to CPLR 3217 (a) (1), which permits a party “asserting a claim” to discontinue it without a court order by serving and filing a notice of discontinuance before a “responsive pleading” has been served. Whether or not such statute may be used in the circumstances here need not be determined, however, since the court is specifically authorized on its own initiative to drop a party for misjoinder (see CPLR §1003 [stating "[p]arties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the [proceeding] and upon such terms as may be just”]). Accordingly, in the exercise of its discretion, the court hereby dismisses the petition as to movant. Since movant is no longer a party to the proceeding, that portion of his motion seeking dismissal of the petition is moot.As for the part of the motion seeking sanctions, movant elected to file a motion to dismiss a petition which sought no relief against Rosemary’s estate (CPLR 3211) rather than simply asking the court to drop him as a party (CPLR §1003). For obvious reasons, movant does not have standing to seek the dismissal of petitioners’ claims against any of the other respondents. It follows that he cannot seek sanctions from petitioners for “frivolous” claims against them. At most, petitioners can be faulted for having unnecessarily joined movant, which is hardly an egregious act, particularly in the case of a miscellaneous proceeding where there can be subtleties in the appropriateness of joinder (see e.g. Matter of Weinstock, NYLJ, Aug. 1, 2017, at 22, col 6 [Sur Ct, NY County 2017]).This decision constitutes the order of the court.Dated: May 1, 2018
