The court has considered the following submissions in determining the motion to dismiss petition:Submission: Date Filed:1. Amended Notice of Motion November 15, 20182. Affidavit of Yien-Koo King in Support November 15, 20183. Memorandum of Law in Support November 15, 20184. Affidavit of Andrew Wang in Opposition January 7, 20195. Affirmation of Akiva M. Cohen, Esq., in Opposition January 7, 20196. Memorandum of Law in Opposition January 7, 20197. Movant’s Reply Memorandum of Law in Support January 9, 2019DECISION Yien-Koo Wang King, preliminary executor of the estate of Chi-Chuan Wang, has moved, pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7), for an order dismissing the petition of Shou-Kung Wang which seeks, among other relief, revocation of movant’s letters.1 Preliminary letters were issued to Ms. King on February 15, 2018.Petitioner contends that Ms. King is dishonest and therefore unfit to serve. Specifically, he alleges that Ms. King willfully violated the October 28, 2003 restraint — imposed on her (and others, including her husband, Kenneth King) by this court in the SCPA 2103 proceeding commenced by the Public Administrator as temporary administrator — by selling six works of art for a total of $34,112,250. In addition, petitioner argues that, since her appointment as preliminar executor, Ms. King, individually, has adopted a position that is against the estate’s interest, in violation of her fiduciary duty.2 According to petitioner, the six paintings at issue were among the 93 works of art which, on Ms. King’s appeal from the October 28, 2003 order, the Appellate Division identified as subject to the restraint against disposition imposed by that order (see Matter of Chi-Chuan Wang [Griffin v. King], 8 AD3d 10 [1st Dept 2004]); but nevertheless, Ms. King posits that she is not barred from disposing of certain of them. Such position, petitioner argues, is not merely inimical to the interests of the estate, but also, contrary to the decision rendered by the Appellate Division, and, accordingly, should disqualify Ms. King from serving as estate fiduciary.Movant appears to argue that the record before the court, including the court’s October 28, 2003 order, which, according to her, does not restrain the disposition of “paintings purchased, gifted or consigned from individuals or corporations other than the decedent,” constitutes the “documentary evidence” on the basis of which the instant petition should be dismissed (CPLR 3211 [a] [1]). In the alternative, Ms. King contends that the pleading fails to state a ground on which relief may be granted (see CPLR 3211 [a] [7]) because the alleged dishonesty occurred prior to the issuance of preliminary letters to her and is yet to be proven, and that, in any event, her service as preliminary executor presents no peril to the estate because the Public Administrator is acting as her co-fiduciary.In response to the motion, petitioner contends that Ms. King has been less than candid with the court. Petitioner alleges that, when Ms. King and Kenneth King filed a motion on October 19, 2015 — again seeking a modification of the restraint — they neglected to inform the court that, between December 2009 and June 2012, they had disposed of six of the 93 works of art.3DiscussionThe motion to dismiss is denied. Movant has not presented “documentary evidence” that would constitute a defense to the allegation that she is unfit to serve as preliminary executor (CPLR 3211 [a] [1]; Lawrence v. Miller, 11 NY3d 588, 595 [2008] [documents provided in support of motion must establish conclusively that petitioner has no claim or cause of action]).In addition, petitioner’s combined allegation — that Ms. King not only wilfully violated the restraint ordered by this court, but also, following her fiduciary appointment, has adopted the position that, notwithstanding the restraining order left “undisturbed” by the Appellate Division (Matter of Chi-Chuan Wang, 8 AD3d 10, supra), she, individually, may dispose of certain of those 93 works of art without restraint — does state a basis on which her preliminary letters may be revoked (see CPLR 3211 [a] [7]).Any answer to the petition must be filed by February 25, 2019.Pending determination of the instant petition, the court, in its discretion, restricts Ms. King’s preliminary letters, limiting her authority to the prosecution of the RICO action she has commenced against Andrew Wang in the Southern District of New York (see SCPA 1412 [4] [a]; Matter of Aragona, 13 Misc 3d 1221 [A] [Sur Ct, Nassau County 2006]; 2 Warren’s Heaton, Surrogate’s Court Practice §40.10 [2019]; see also, SCPA 719 [10]).This decision constitutes the order of the court.Clerk to notify.Dated: February 11, 2019
