ESTATE OF RAMA BETTY LOMAX, (14/1027/E/F) — At the call of the calendar on November 14, 2017, Petitioner failed to appear and failed to file an affidavit of service of the citation on any of the Respondents or request that a supplemental citation be issued. The court directed that this Petition be marked off the calendar.This decision, together with the transcript of the November 14, 2017 proceedings, constitutes the order of the court.Dated: November 28, 2017ESTATE OF MARILYN P. HARVEY, Deceased (13/2931/D) — At the call of the November 17, 2017 calendar, the court granted the unopposed motion filed by Richard A. Roberts, Esq., to be relieved from further representing objectant Angela Wright in the accounting proceeding filed by Sherry Ann Coulibaly, as Administrator of the estate of Marilyn P. Harvey. The court also stayed all proceedings for 30 days to allow Ms. Wright to retain new counsel (CPLR 321 [c]).This decision constitutes the order of the court.Mr. Roberts shall serve a copy of this Decision and Order with Notice of Entry upon objectant and all other parties within ten (10) days of the date of this Order.Dated: November 28, 2017ESTATE OF CHARLES M. KOTICK, Deceased (05/1202/I);ESTATE OF CHARLES M. KOTICK, Deceased (05/1202) — On the record, at the call of the calendar on November 3, 2017, the court amended this court’s July 31, 2017 decision in these two proceedings to eliminate the requirement that Natalia Shvachko (“Natalia”), the surviving spouse of decedent Charles Kotick, pay the amount of tax liability in respect of an entity known as Blue Water, in which decedent is alleged to have had an interest, from the proceeds of the refinancing of the mortgage debt connected to the decedent’s cooperative apartment at Sutton Place. The parties filed a stipulation providing for the payment, from another source, of the amount of the tax liability which decedent’s executor, Robert Kotick, initially represented that the estate owed regarding the Blue Water entity.1In the SCPA 2107 proceeding before the court, decedent’s executor seeks to sell on the open market the corporate shares appurtenant to the Sutton Place cooperative apartment in which Natalia and decedent resided before his death on March 21, 2005, and in which Natalia continues to reside. The executor claims a need to pay estate expenses, including attorney’s fees and taxes. In the proceeding for a stay that is also before the court, Natalia seeks to have sufficient time to refinance the mortgage on the cooperative shares and claims that the executor has unjustifiably incurred fees and expenses of the estate in order to force her from her home through a judicially coerced sale. A prenuptial agreement required decedent to leave Natalia the marital residence and the will of decedent does specifically bequeath her the cooperative shares at issue but subject to any mortgage on the cooperative shares. The trial in the related, but separate, estate accounting by the executor, to which Natalia has objected and which will determine the bona fides of the claimed taxes and expenses, is currently scheduled to commence on February 6, 2018.Natalia, it is alleged, continued to make interest payments until sometime this year when the assignee of the mortgage, an entity known as Avail 1 LLC, which is a respondent in the proceeding brought by Natalia to stay the sale of the shares, would no longer accept them. The mortgage debt principal, it is also alleged, has been due and owing for many years running. However, because the cooperative shares remained titled in the name of decedent, Natalia could not refinance the mortgage amounts due. The executor claimed the estate had insufficient funds with which to satisfy the debt or refinance. At the July 27, 2017 special calendar, the court pennitted the transfer, upon Natalia’s motion, of the shares to her, solely to allow refinancing, subject to her reconveying the shares and vacating the apartment should a sale be necessary if the expenses claimed by the executor are proven to be properly those of decedent’s estate in the accounting.2 Having weighed the elements necessary to impose a preliminary injunction, the court then stayed the sale of the cooperative shares initiated by Avail under the Uniform Commercial Code in order to allow the refinancing, and forestalling what would essentially be a foreclosure sale.The refinancing did not happen within period of the initial stay granted on July 27th for reasons, in the court’s view, that are attributable to all three parties. On November 3, 2017, on the record and upon Natalia’s motion commenced by order to show cause to extend the stay further, the court stayed the sale by Avail for an additional 45 days, or until December 18, 2017, to avoid wasting an estate asset and irreparably harming Natalia’s interests by evicting her from her longtime home. Avail, as the court noted, could later be made whole through refinancing or a monetary payment (see Levkoff v. Soho Grand-W. Broadway, Inc., 115 AD3d 536, 536-37 [1st Dept 2014]; McMillan v. Park Towers Owners Corp., 225 AD2d 742 [2d Dept 1996]; Ryan v. Dowicz, 306 AD2d 396 [2d Dept 2003]; Wargo v. Jean, 77 AD3d 919 [2d Dept 2010]; BNY Financial Corp. v. Moran, 154 Misc 2d 435 [Sup Ct, NY County 1992]).The court further directed that if the debt owed to Avail is not paid by close of business on December 18, 2017, Bobby Kotick may pay off the Avail debt, and he should then list the apartment for sale in the open market with a reputable broker at a price to be determined based on a recent appraisal and consultation with the broker or reputable real estate agents.3 The court also noted that, to avoid delays, if there is no recent appraisal of the property, the executor may have the property appraised now and Natalia is directed to provide reasonable access to a qualified appraiser and no more than three reputable real estate brokers or their agents before December 29, 2017, during the daytime on 48-hours notice to her.In light of the parties’ stipulation concerning the payment of the Blue Water tax liability from other sources, the amounts to be financed by Natalia are only those amounts owed to Avail under its contract. Counsel for Natalia and Avail were directed to meet and confer after the court calendar to straighten out any issues regarding the amount to be refinanced.Finally, all parties, including Avail, were directed to comply with the conditions imposed by the court in its July 31,2017 decision and order regarding access to and vacating the apartment and to cooperate in providing all information and documentation necessary to accomplish the refinancing requested by counsel for Natalia.This decision, together with the transcript of the November 3, 2017 proceedings, constitutes the order of the court.Dated: November 27, 2017
