Papers considered: 1. Petition to Compel Production of Will (with exhibits) by Susan McConekey filed December 11, 2019. 2. Power of Attorney by decedent appointing respondent filed February 21, 2019. 3. Account of Father Frank Alagna as Agent by Fr. Frank Alagna and Joshua N. Koplovitz, Esq. filed May 26, 2020. 4. Notice of Motion by Joshua N. Koplovitz, Esq. filed June 10, 2020. 5. Affidavit in Support of Motion by Fr. Frank Alagna and Joshua N. Koplovitz, Esq. filed June 10, 2020. 6. Affirmation in Support of Motion by Joshua N. Koplovitz, Esq. filed June 10, 2020. 7. Affidavit in Opposition to Motion by John J. Wadlin, Esq. filed June 30, 2020. DECISION/ORDER The issues addressed in this decision came to the Court’s attention in the context of a petition to compel production of the decedent’s will. The petitioner was Susan McConekey (“petitioner”), a nominated co-executor under the will. The petition to compel production of decedent’s will claimed that respondent Father Frank Alagna (“respondent”), nominated to serve as co-executor with the petitioner, had misused his authority under a power of attorney to deed decedent’s property to himself. It was also alleged that respondent had removed and sold the contents of decedent’s home, including her jewelry. Last, it was reported that decedent had transferred certain “bank accounts and securities accounts” to respondent in the years immediately preceding her death at age 103. Decedent’s will was filed with the Court in anticipation of probate by respondent’s current attorneys on January 30, 2020. The will, which has now been offered for probate, divides decedent’s estate into two shares: 25 percent to Klyne Esopus Museum (the “Museum”) and 75 percent to “Holy Cross Santa Cruz Church” (“Holy Cross/Santa Cruz”), where respondent serves as pastor. The will directed that respondent “administer” the bequest to his church. Having been made aware of potential misconduct by the respondent in the exercise of his fiduciary authority, the Court ordered that he file a petition for judicial accounting for his activities as decedent’s agent, citing SCPA 2205(1) and the best interests of the estate. Respondent thereafter filed a verified document that summarized his activities as decedent’s agent. While it was not an accounting, it did provide some context for respondent’s actions with respect to decedent’s real property. The deeds signed by respondent as agent purported to transfer realty ultimately intended under decedent’s will to benefit Holy Cross/Santz Cruz and the Museum. It was valued at approximately $1,000,000. These deeds, it was reported, were signed by respondent in a misguided attempt to carry out decedent’s testamentary plan, while avoiding probate. The respondent also disclosed that decedent had added him as a co-owner of a bank account valued at approximately $300,000, nearly all of which he transferred to Holy Cross/Santa Cruz. After reviewing respondent’s filing, the Court issued its Decree/Order dated June 2, 2020 (the “June 2 Order”) which required that the deeds signed by the respondent be marked off from the records of the County Clerk and that a hearing be scheduled to take testimony on respondent’s conduct as the decedent’s agent under the powers of attorney. The present motion to reargue and resettle the June 2 Order followed. It is opposed by the Museum. Although not cited in his papers, respondent’s motion relies on CPLR 2221, which authorizes and governs motions seeking to affect a determination or order. Broadly, motions for leave to reargue under CPLR 2221 require “a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision” (Peak v. Northway Travel Trailers, 260 AD2d 840, 842 [3d Dept 1999]). The CPLR expressly limits such motions to reargue to “determinations” on a “prior motion” (CPLR 2221 (a), (d)[2], [3])1. Here, no motion occasioned the June 2 Order. That order was made sua sponte, based on statements made in open court and the allegations made in the verified petition to compel production of decedent’s will. This Court engaged no fact-finding, nor was a “determination” made in the June 2 Order. Respondent’s motion to reargue is therefore untimely, because under CPLR 2221(d) there is no determination on a prior motion to contest or correct at this time. Even if the June 2 Order had arisen from the determination of a prior motion as required by CPLR 2221(d), the respondent’s papers identified no matter of fact or law which the Court “misapprehended” and which lead it to error (CPLR 2221(d)[2]). In its focus on the respondent’s intent and knowledge or understanding of the terms of the Power of Attorney and deeds, as well as his reliance on the advice of counsel, respondent’s papers identify the very issues of fact that the hearing scheduled under the June 2 Order is intended to address. Motions to resettle are based on the common law principal that “every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action” (Liss v. Trans Auto Systems, Inc., 68 NY2d 15, 20 [1986], citations omitted; see, also 1 Weinstein, Korn & Miller CPLR Manual §15.07 (2019)(a motion to resettle relies on the inherent power of a court to correct errors, defects, or irregularities in its decisions or orders). In this case, the Court acknowledges that the June 2 Order requires correction. The Court erroneously characterized the second deed as conveying the premises to respondent, which it did not. Instead, the second deed (signed by respondent after decedent’s death) attempts to follow the terms of decedent’s will by reconveying the premises to Holy Cross/Santa Cruz and the Museum. The June 2 Order shall be re-settled and amended to reflect this correction. In the past week, petitioner and respondent have each filed petitions for letters testamentary and for preliminary letters, which are currently under review. Each of them seek to be appointed to the exclusion of their nominated co-fiduciary. Since the will has now been offered for probate, its terms are subject to judicial scrutiny under SCPA 1408(1) (see, Matter of Walker, 124 AD3d 970, 971 [3d Dept 2015]). In this vein, decedent’s gifts to respondent, the bequest to Holy Cross/Santa Cruz, encompassing 75 percent of decedent’s estate, and the nomination of the respondent as executor and “administrator” of the bequest to his church, must be addressed. Gifts or bequests to clergypersons or the religious institutions they are associated with have historically attracted judicial scrutiny when the clergyperson is in a “confidential relationship” with the donor or testator (see, Marx v. McGlynn, 88 NY 357, 371 [1882]; more recently, D’Onofrio v. Mother of God with Eternal Life, 60 Misc 3d 910 [Sup Ct Westchester Cty 2018]). Respondent is the pastor of Holy Cross/Santa Cruz, which is the chief object of decedent’s lifetime giving and testamentary plan. Both individually and by virtue of his position in the church where decedent was a congregant, respondent was in a “confidential relationship” with decedent. The gifts and bequests benefitting the respondent and the church where he serves as pastor therefore create an inference of undue influence under Matter of Putnam, 257 NY 140 [1931]) and the Court therefore is required to bring “extreme vigilance” to its review of the transactions (Matter of Burke, 82 AD2d 260, 271 [2d Dept 1981], citations omitted). Such a review will require respondent to “come forward and explain his becoming the principal beneficiary” of decedent’s generosity (In re Satterlee’s Will, 281 AD 251, 253 [1st Dept 1953]). Decedent’s will has now been placed before the Court by means of petitions for letters testamentary and it is incumbent upon the Court to make further inquiry under SCPA 1408(1). The scope of evidence received at the hearing in this matter will therefore be broadened to include the nature of respondent’s relationship with the decedent, the circumstances of the transfers for his benefit, the preparation and execution of the powers of attorney, deed and the will, and any other evidence which may disprove the inference of undue influence created by respondent’s conduct and these instruments. Respondent’s motion to reargue is denied. Respondent’s motion to re-settle is granted to the extent of the correction described herein. It is, therefore, DECIDED and ORDERED, that the June 2 Order is hereby corrected and amended in accordance with the terms of this Decision/Order; and it is FURTHER DECIDED and ORDERED, that the Chief Clerk shall schedule a hearing in this matter after the Court has acquired jurisdiction in respect of the probate of decedent’s will, at which hearing the Court shall receive evidence for the purpose of fact-finding (1) on the conduct of respondent as decedent’s agent under the Powers of Attorney; (2) on the propriety of the fees paid to Joseph M. Ingarra, Esq; and (3) any other evidence which may tend to disprove the inference of undue influence created by respondent’s conduct and the transactions referred to in this Decision/Order. This constitutes the decision/order of the Court. All papers, including this Decision/Order, are hereby entered and filed with the Clerk of the Surrogate’s Court. Counsel is not relieved from the applicable provisions of CPLR Section 2220 relating to service and notice of entry. Dated: July 6, 2020
