In this contested probate proceeding, counsel for petitioner Dorothy Sanguinedo filed an Order to Show Cause on September 18, 2018 pursuant to CPLR 6514 to request: (1) The cancellation of a Notice of Pendency on vacant land located on Phillip Avenue, Staten Island, New York, Block 6455, Lot 56 (“Premises”); and (2) Payment of attorney fees.Counsel for respondent Donald Bregulla filed an Affirmation in Opposition on October 5, 2018. Subsequently, counsel for respondent filed a Notice of Cross-Motion pursuant to SCPA 1412(4) and (5) and SCPA 805 on October 10, 2018. Counsel for petitioner filed an Affirmation in Opposition on October 26, 2018 and then Counsel for respondent filed a Reply Affirmation on October 30, 2018.The Order to Show Cause was argued before this Court on October 10, 2018 and the Cross-Motion was argued on October 31, 2018.FACTSWalter Stojanowski (“Decedent”) died on May 22, 2015. A petition for the probate of a purported Last Will and Testament dated March 30, 2011 was filed with this Court on July 29, 2015. The petition indicated that the decedent was survived by his nieces and nephews. The parties who have appeared in these proceedings include the petitioner, respondent, and John Stojanowski, who appeared first with counsel and is now appearing pro-se. Additionally, there has been a second probate petition filed with this Court on March 16, 2017 for another purported Last Will and Testament also dated March 30, 2011. Preliminary letters were first issued to petitioner on Sept ember 9, 2015 subject to the limitations set forth in SCPA 1412(3)(A).Subsequent unopposed requests for the extension of said letters were granted by this court by decision and orders dated March 9, 2016 and April 13, 2018.The petitioner as preliminary executrix proceeded to enter into a contract of sale for the premises on June 21, 2018. The sale has not taken place due to the filing of a Notice of Pendency on the premises filed by counsel for the respondent dated June 19, 2017 (see, Exhibit C of Order to Show Cause).Since the arguments were heard, counsel for petitioner has filed a third request for an extension via affirmation on November 14, 2018, cc’d to counsel for respondent and John Stojanowski, pro-se. Additionally, counsel for respondents has filed verified objections to probate of the purported Last Will and Testament dated March 20, 2011 (see, File No. 2015-745/B) on October 10, 2018 and November 19, 2018. SCPA 1404 examinations of the drafting attorney, Mark Zawizny, were set to take place on November 27, 2018, but have since been adjourned.DISCUSSIONCPLR 6501 states, “A notice of pendency may be filed in any action in a court of the state, or of the United States in which the judgment demanded would affect the title to or possession of real property.”CPLR 6514(b) titled Discretionary Cancellation, “The Court upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency if the plaintiff has not commenced or prosecuted the action in good faith.”Upon review of oral argument and the papers filed, the Court finds that there is not an issue of title of the property in question (Will of Sabatino, 90 Misc2d, 56, 48, 393; 393 NYS2d 671 [Sur Ct, Albany Co 1977]; Cassia v. Cassia, 125 Misc2d 606; 480 NYS2d 84 [Sup Ct, Westchester Co 1984]). Further the property was conveyed to the decedent on January 15, 1999 and has been part of the decedent’s estate since then. Accordingly, pursuant to CPLR 6501(b), the Clerk of Richmond County is directed to cancel the Notice of Pendency dated June 19, 2017. Counsel for Petitioner is directed to file an appraisal of the premises within thirty (30) days of the date of this decision. Upon receipt of the appraisal of the premises, the Court shall then address the arguments contained in the Cross-Motion.Counsel for petitioner is directed to file an Affidavit of Legal Services regarding the issuance of fees pursuant to CPLR 6514.Preliminary Letters Testamentary were first issued on September 9, 2015, extended on March 9, 2016, and then extended again on April 13, 2018. The preliminary executor now seeks a third extension. The application is granted.The Preliminary Letters Testamentary are extended for six (6) months from October 13, 2018 until April 13, 2019. The powers of the preliminary executrix are limited to those granted on September 9, 2015 and subject to the within decision.This decision shall constitute the order of the court. A copy of this decision shall be mailed to all attorneys who have appeared and to John StojanowskiDated: December 26, 2018
