AMENDED ORDER Arlene Tesoriero died a resident of Richmond County, New York on May 4, 2018. Petitioner and daughter of decedent’s pre-deceased daughter, Christina Delliliune, (“Petitioner”), filed a petition in this Court accompanied by an Order to Show Cause and request for a temporary restraining order to prevent the sale of the property located at 41 Brook Avenue, Staten Island, New York, 10306. Petitioner alleges that the decedent’s son and attorney-in-fact, Michael Tesoriero, (“Respondent”), as trustee of the John Tesoriero Irrevocable Inter Vivos Trust (“Trust”), transferred the subject property into the Trust without the power of an executed Statutory Gift Rider. Petitioner further requested that Respondent transfer the property back into the estate of the decedent. Concurrent with the petition, Petitioner filed a lis pendens with the County Clerk of Richmond County on the subject property.A Guardian ad Litem was then appointed on behalf of John Tesoriero, the incapacitated adult son of the decedent and trust life estate beneficiary, on October 24, 2018.Respondent submitted opposition by filing an Order to Show Cause to dismiss the petition and direct the County Clerk to cancel the lis pendens. In the motion, Respondent argues that Petitioner has no standing to pursue the return of the property into the estate. According to Respondent, Petitioner has no personal claim to the property as required under SCPA 2105 to institute the reverse discovery proceeding, and no standing within the estate, as fiduciary or otherwise, to recover the property. The Guardian ad Litem filed an affirmation in support of Respondent’s Order to Show Cause.The Court agrees.DISCUSSIONA. StandingThe primary issue before this Court is whether the Petitioner has standing to commence an SCPA 2105 proceeding. In order to commence an SCPA 2105 proceeding, the party has to have a “personal claim to the premises or the right to immediate possession.” (Tiffany v. Tiffany, Sur Ct Westchester County 2001 NYLJ October 1, 2001 at 27 col 2, see also Matter of Litman, 13 Misc 2d 108, Sur Ct Nassau County 1958.) Petitioner is a beneficiary under the will, to which no probate proceeding has been instituted, and is a vested remainder beneficiary under the Trust, which has a current life estate. Neither status allows Petitioner to establish the Tiffany requirements for this proceeding. She cannot qualify as an executor or administrator at this time, and she has no immediate right to possession of the subject property.She is not without recourse. As in Tiffany, “[u]nder the circumstances, petitioner may seek limited letters in decedent’s estate in order to obtain standing to pursue the relief she now seeks.” Id. Accordingly, the SCPA 2105 petition is dismissed without prejudice with the right to renew upon the issuance of limited letters.B. Notice of PendencyRespondent argues that the lis pendens filed against the premises by the petitioner with the Richmond County Clerk on August 22, 2018 should be cancelled pursuant to CPLR 6514(A) and 6514(B) and costs and fees should be awarded to the Respondent.Since the underlying SCPA 2105 proceeding is herein dismissed without prejudice to renew, the lis pendens is hereby cancelled. Respondent’s request for fees and costs are denied.CONCLUSIONAccordingly, the SCPA 2105 proceeding is dismissed without prejudice. Further, pursuant to CPLR 6514(a), upon service of this order, the Richmond County Clerk may cancel the lis pendens dated August 22, 2018 and filed on 41 Brook Avenue, Staten Island, New York 10306. The temporary restraining order against the premises is hereby vacated.The Guardian ad Litem is directed to file an Affirmation of Legal Services.This decision shall constitute the Order of this Court.Dated: February 28, 2019
