ADDITIONAL CASES In the Matter of the Petition of Evangelia Dushas, Pursuant to SCPA §2103, as Limited Administrator of the Estate of Wilma B. Tsangaris, Deceased; 2013-377/F DECISION & ORDER Evangelia Dushas (“Evangelia”) instituted proceedings seeking: (1) to expand her letters of limited administration (the “2019 letters proceeding”) to permit her to (a) act with respect to assets belonging to Wilma B. Tsangaris (the “decedent”) in Greece including negotiating with the co-op board of the building where the decedent’s apartment (the “co-op”) is located, (b) obtain the Greek equivalent of ancillary probate, and (c) file tax returns on behalf of the estate with the Greek taxing authorities; and (2) the turnover of assets (the “turnover proceeding”) belonging to the decedent to her as the limited fiduciary which are alleged to be in the hands of Sotirios T. Dushas (“Sotiri”) and Nicholas Tsangaris (“Nicholas”). Nicholas has moved to dismiss both proceedings. The motions are opposed by Evangelia, and they are decided as set forth below. PROCEDURAL HISTORY The Probate On June 4, 2012, the decedent died, leaving an instrument dated December 19, 1996 and a revocable pour-over trust (the “trust”) made the same day. Nicholas filed a probate petition which stated that the assets of the estate were between $500,000.00 and $1,000,000.00. On March 20, 2013, the instrument was admitted to probate, and letters testamentary issued to Nicholas. Nicholas is also the trustee of the trust. The Estate and Trust Accountings Filed by Nicholas On September 25, 2015, Evangelia filed a petition to compel Nicholas to account as the executor of the decedent’s estate. The petition set forth Nicholas’s address as One Bond Street, New York, NY. Based on the papers filed, the court issued a citation to Nicholas. Counsel for Evangelia filed an application for substituted service stating that they were unable to serve Nicholas at his New York address despite multiple attempts. Thereafter, counsel for Nicholas informed Evangelia’s counsel that Nicholas was “in Greece which he frequently travels to for extended periods of time in order to conduct his shipping business”, and she was not authorized to accept service of the petition on his behalf. On December 1, 2015, Nicholas’s counsel accepted service of the petition on his behalf. No order compelling the account was ever issued by the court. On April 28, 2016, Nicholas filed a petition for judicial settlement of his account as the executor of the decedent’s estate and as trustee of the trust. The initial petition was amended, at the instruction of the court, to separate the judicial settlements of the trust and estate into two petitions. The amended estate accounting petition prayed for Nicholas’s discharge as to all matters covered in the accounting period of June 2, 2012 to August 31, 2013. Thereafter, this accounting was amended three times. On July 11, 2016, Nicholas filed a new petition for judicial settlement of his account as trustee which prayed for his discharge as trustee for the period from June 4, 2012 through April 30, 2016, the setting of his commissions and the fixation of the legal fees of Davidson, Dawson & Clark and Hahn & Hessen. The account was amended. Citation issued on both accounting proceedings. After the return of the citations, Evangelia sought the pre-objection deposition of Nicholas, and he moved for a protective order requesting that his deposition be conducted by video conference or on written questions because he was in Greece and suffering from a medical condition which made him unable to travel. Thereafter, with the aid of the court, the parties entered into a stipulation which was “so ordered” by the court on January 30, 2018, resolving the logistical issues. The deposition was conducted by video conference with Nicholas remaining in Greece. On March 14, 2018, Evangelia filed objections in both accountings against the asset schedules for failure to include the co-op and its contents (artwork, jewelry, precious stones and cash) and the decedent’s share of her husband’s business interests. In the pleading, Evangelia prayed for the following relief: (1) surcharge of all commissions; (2) return by Nicholas of legal fees or surcharge of legal fees paid from the estate or trust; and (3) surcharge against Nicholas for the appropriation of the decedent’s assets. For the four years following the joinder of issue, the accounting proceedings have been tied up in motion practice, primarily concerning discovery issues. Limited Letters of Administration Proceedings Instituted by Evangelia By petition filed on June 1, 2017, Evangelia sought limited letters allowing her to “marshal[] the estate assets of the decedent at the time of her death located in Greece” (the “2017 letters proceeding”). By decision and order dated January 17, 2018, this court held: Pursuant to SCPA §702, the court, may issue limited letters in certain circumstances. Those sections applicable here are subsection [8] to represent the estate in a transaction in which the acting fiduciary could not or should not act in his fiduciary capacity because of a conflict of interest; subsection [9] to commence and maintain any action or proceeding against the fiduciary, in his individual capacity; and subsection [10] to any other purpose or act deemed by the court to be appropriate or necessary in respect of the affairs of the estate, the protection thereof or to the proper administration of the estate. The determination as to the issuance of limited letters is discretionary with the court (Matter of Leistner, 12 Misc.3d 1153 [A] [2006]; Matter of Stoller, 4 Misc.3d 538 [2004]). Under the circumstances presented here, the petition is granted to the extent that limited letters of administration shall issue to Evangelia Dushas to commence discovery proceedings against Nicholas, the executor of the estate (SCPA §2103). The remainder of the prayers for relief in the petition are denied. On May 24, 2018, Evangelia filed a second petition brought on by order to show cause for limited letters of administration (the “2018 letters proceeding”). The relief sought was permission to commence: (1) a discovery proceeding against Sotiri, Anemi Maritime Services, S.A., and Kyrini Shipping, Inc. (“Kyrini”) and (2) compel account proceedings against Sotiri as attorney-in-fact and/or de facto attorney-in-fact. The order to show cause was directed to Sotiri, Nicholas and Michael Tsangaris (“Michael”). The petition was opposed by Sotiri and supported by Michael. On May 31, 2018, this court issued an amended decision and order, awarding limited letters of administration to Evangelia and wrote: Under the circumstances presented here, based on the record before the court which includes the fact that the statute of limitations purportedly is set to expire on Monday, June 4, 2018, the petition is granted, and limited letters of administration shall issue to Evangelia to commence discovery proceedings against Sotiri, Anemi and Kyrini and to compel Sotiri to account as attorney-in-fact and/or de facto attorney-in-fact for the decedent. The Compel Account Proceedings Instituted By Evangelia On June 1, 2018, Evangelia filed two compel account petitions, seeking an order compelling: (1) Nicholas to account as attorney-in-fact for the decedent and (2) Sotiri to account as attorney-in-fact and/or de facto attorney-in-fact. The relief was granted.1 The Inquiry Proceeding Instituted by Evangelia By order to attend dated June 7, 2018, Evangelia commenced an SCPA §2104 inquiry against Sotiri with a request made in the petition that certain documents be brought to the deposition. Sotiri served a response to the document demand, generally stating that the requests were overbroad and burdensome, but, in any event, except for one category, had no responsive documents in his possession, custody or control. The deposition was conducted in accordance with the court order, thereafter, motion practice ensued regarding the scope of the questioning, and a further inquiry of Sotiri was held. THESE MOTIONS Evangelia’s Conversion of the Inquiry into the Turnover Proceeding On December 11, 2019, Evangelia filed a new petition, seeking a decree mandating the turnover from Nicholas and Sotiri of the bearer shares of Kyrini and an amount not less than $300,000,000.00 (representing the decedent’s share of her husband’s business interests) to her as the limited administrator of the decedent’s estate. The citation, directed to Sotiri and Nicholas, was returned on April 1, 2020. In lieu of answering the petition, Nicholas filed a motion to dismiss, requesting an order, dismissing the turnover proceeding in accordance with CPLR §3211(a)(4) as duplicative of the estate and trust accountings or staying the turnover pending the outcome of the accountings. In support of the motion, Nicholas submitted his attorney’s affirmation in which he contended that: (1) in accordance with CPLR §3211(a)(4), the court should dismiss the turnover because the accountings constitute “[an]other action[s] pending” between the same parties; (2) the turnover is based on the same set of facts, namely, the purported misappropriation of assets, which comprises the basis for the objections made to the accountings; (3) there is substantial identity between the parties to the proceedings; (4) while she claims that Nicholas misappropriated assets for himself, Evangelia has no evidence of such malfeasance, and because of that lack of evidence, the turnover proceeding is premature; (5) neither the estate, the trust nor Nicholas should have to endure duplicative proceedings; and (6) the turnover is baseless because Nicholas, as fiduciary, conducted a reasonable investigation regarding the decedent’s assets, marshaled all available assets and filed accountings. In opposition to the motion, Evangelia submits the affirmation of her attorney in which he alleged that: (1) the non-party discovery, which Nicholas calls an “expensive fishing expedition”, had been necessitated by his and Sotiri’s refusal to produce documents and by their self-interested deposition testimony; (2) discovery taken in the accountings has revealed that the decedent received significant sums from her husband’s business interests which have not been recorded in the accounts; (3) the petitions should not be dismissed because the turnover and accountings plead separate causes of action and seek different relief; and (4) while the relief sought in the objections is surcharge against Nicholas of commissions and legal fees, the relief in the turnover would be for damages including the principal amount misappropriated by Nicholas and Sotiri plus profits earned from their use of decedent’s property. Finally, the attorney argues that Nicholas has not met the standard required for the imposition of a stay of the turnover proceeding. In reply, Nicholas argues that the court can grant the turnover relief in the accountings, and just because the relief requested in the two petitions differs, does not mean that the proceedings are not duplicative. Evangelia’s 2019 Letters Proceeding On October 23, 2019, Evangelia filed a petition praying for a decree expanding her authority as limited fiduciary to act with respect to the decedent’s Greek assets; file Greek tax returns; and apply in Greece for the equivalent of ancillary probate of the decedent’s will. In that petition, she alleged that she needed this relief because: (1) a proceeding was never filed by Nicholas to administer the decedent’s Greek property; and (2) Nicholas breached his fiduciary duty by failing to marshal these assets and converting and wasting assets. Attached to that petition were various exhibits including a 2016 statement from Dimitrios Nikitopolus (“Dimitrios”), a former employee of Nicholas, translated from Greek, in which he stated, among other things, that he emptied the contents of the co-op on Nicholas’s instruction, and it was filled with expensive jewelry, decorative objects and artwork. A citation was issued to Nicholas and Michael. In lieu of answering, Nicholas filed a motion to dismiss requesting an order: (1) dismissing the petition or (2) staying the proceeding pending the outcome of the accountings; and (3) enjoining Evangelia from filing any future petition in the decedent’s estate without leave of court. In addition to the allegations Nicholas made in support of the motion to dismiss the turnover proceeding, his counsel contended in this motion on the issue of the injunction, among other things, that: (1) Evangelia abused the judicial process by filing 13 petitions and dozens of supboenas; (2) because of this abuse, permission from the court should be required before she files any new petition; and (3) an injunction would protect Nicholas from wasteful litigation and unnecessary costs. With regard to Evangelia serving as a fiduciary with greater authority, the attorney stated that: (1) the decedent chose not to name Evangelia to serve as a fiduciary under either the estate or the trust; (2) in the 2017 letters proceeding, the court permitted Evangelia only to commence a discovery proceeding and denied her the right to administer property in Greece; (3) Greek counsel have advised that the co-op is not an estate asset, and therefore, it did not need to be marshaled; (4) there are no new facts asserted since the 2017 letters proceeding; and (5) Dimitrios was a disgruntled employee whose statement was improper. In addition to what Evangelia offered in opposition to the motion to dismiss the turnover proceeding, her attorney contends that, with regard to the injunction, public policy requires free access to the courts and a restriction should be imposed only if the court finds that Evangelia has engaged in frivolous litigation, and she has not done so. With regard to the expansion of her authority, Evangelia’s counsel alleges that: (1) this petition is predicated on new facts including a potential forfeiture and seeks different relief; (2) Evangelia was advised on March 10, 2020, by Greek counsel, that the co-op is in litigation and is at risk; and (3) neither the turnover proceeding nor the accountings can protect the co-op from forfeiture. ANALYSIS The Motions to Dismiss Nicholas moves to dismiss the turnover and the 2019 letters proceedings on the basis that the pending accountings constitute “[an]other action[s] pending. CPLR §3211(a)(4) provides that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires. Dismissal of a pleading pursuant to CPLR §3211(a)(4) may be warranted as a matter of judicial comity to avoid conflicts which might result from inconsistent rulings issued by courts of concurrent jurisdiction (see White Lights Prods v. On the Scene Prods, 231 AD2d 90 [1st Dept 1997]). This statute gives the court broad discretion in determining whether an action should be dismissed on this basis, and if not, in deciding whether justice might require the making of a different order. For example, in Donnelly v. Neumann (2019 NY Misc LEXIS 4416 [Sup Ct NY County 2019]), the court exercised its discretion in denying a CPLR §3211(a)(4) motion to dismiss and in then transferring overlapping claims to the Surrogate’s Court where a proceeding was pending on similar facts. In Matter of Cooper (2018 NY Misc LEXIS 1329 [Sur Ct NY County 2018]), the court exercised its discretion in denying a motion to dismiss and consolidating the Supreme Court complaint alleging breach of fiduciary duty and conversion with a discovery proceeding pending before it (see also Kent Dev. Co. v. Liccione, 37NY2d 899 [stating that joint trial may be more appropriate than dismissal where allegations in two actions are similar]). Even where two proceedings arise out of the same series of alleged wrongs, the court may find that dismissal is inappropriate where the relief sought is not the same (see Kent Dev. Co. v. Liccione, 37 NY2d 899, supra [reversing dismissal of complaint where, although causes of action in both suits arose out of the same subject matter, nature of relief found not to be the same because counterclaims were lodged in one action but not in the other]). The Discovery Proceeding Although the issues raised in the objections to the accountings and those in the turnover proceeding arise out of the same set of facts, namely the nature, extent, location and administration of the decedent’s assets, the relief sought in the two proceedings is different. Contrary to Nicholas’s contention, this is not a “hyper-technical argument”. If Evangelia is successful on her objections to the asset schedules of the accountings, her remedy will be the court’s surcharge against Nicholas personally in the form of forfeiture of his commissions and the payment of any professional fees from estate assets potentially with interest at the rate of 9 percent for those breaches of fiduciary duty (see Matter of Marsh, 106 AD3d 1009 [2d Dept 2013]). In contrast, if successful in the turnover proceeding, the relief rewarded against Sotiri and/or Nicholas would be damages including the return to the estate of the misappropriated assets in kind or their monetary value (6 Harris, New York Probate and Administration §26:29) with interest. Further, in the turnover proceeding, Evangelia potentially would be entitled to commissions on any returned estate assets and would be required to distribute any recovered property in accordance with her own accounting proceeding (see generally Matter of Davis, 2002 WL 31940718 [Sur Ct Broome County 2002]). The cases cited by Nicholas concern the dismissal of one action where another proceeding was pending in a different venue and where there would be a risk of inconsistent results if the two actions were to proceed simultaneously (see Matter of Willnus, 101 AD3d 1036 [2d Dept 2012] [dismissing later brought Surrogate's Court petition where relief sought in Supreme Court guardianship proceeding was substantially the same]; Simonetti v. Larson, 44 AD3d 1028 [2d Dept 2007] [affirming dismissal of Supreme Court complaint where pending Surrogate's proceeding sought same relief]). Secondarily, although perhaps more importantly, in contrast to the plaintiffs in those cited cases, there is no potential for Evangelia to be made whole by the accounting proceedings alone. Based on the above, the motion to dismiss the turnover proceeding is denied. The 2019 Letters Proceeding As a preliminary matter, the determination as to the issuance of limited letters is discretionary with the court (Matter of Leistner, 12 Misc3d 1153 [A] [Sur Ct Nassau County 2006]; Matter of Stoller, 4 Misc3d 538 [Sur Ct NY County 2004]). Additionally, Nicholas’s request to dismiss the 2019 letters proceeding appears more to be based on a res judicata argument, to wit, that Evangelia had requested this relief in 2017, and it specifically had been denied by court order and less to be based on CPLR §3211(a)(4). On either basis, however, dismissal is denied. As to the CPLR §3211(a)(4) argument, dismissal is not warranted because the relief requested by Evangelia in the 2019 letters proceeding is the right to act as a fiduciary with respect to the decedent’s assets which she alleged are being misappropriated and/or wasted. That relief is different than that to which she would be entitled based on her objections lodged against Nicholas’s accounts. As to the CPLR 3211(a)(5) res judicata argument, as a preliminary matter, it was not set forth as a ground for dismissal in the notice of motion (see Four Season Hotels v. Vinnik, 127 AD2d 310 [1st Dept 1987]). However, even if it was, dismissal would be denied on that basis because the decree made in the 2017 letters proceeding did not deny Evangelia’s relief with prejudice (see Matter of Prime, 252 AD 446 [2d Dept 1937] [in determining that plaintiffs were entitled to pursue their relief, modifying order which dismissed complaint without prejudice to bring new action in the Supreme Court should the Surrogate not entertain the proceeding]). Typically, courts initially award letters limited to the pursuit of a discovery proceeding which the fiduciary will not institute. As set forth in this court’s decision and order in the 2017 letters proceeding recited above, based on the facts and circumstances present at that time of the making of that order, relief was awarded in accordance under SCPA §702(9). Now that matters in the decedent’s estate have progressed and additional allegations have been presented to the court regarding the protection of the decedent’s Greek assets and their administration, the court declines to dismiss the 2019 letters proceeding which seeks relief in accordance with SCPA §702(10). Request for a Stay CPLR §2201 provides that a court may grant a stay “in a proper case”. As the plain language of the statute suggests, the determination as to the issuance of a stay is addressed to the court’s discretion (see Matter of Salerno, 154 AD2d 430 [2d Dept 1989]; Bank of New York v. Levy, 123 AD2d 589 [2d Dept 1986]). In deciding whether to stay a proceeding, the court may consider the risk of inconsistent adjudications and potential waste of judicial resources (see Zonghetti v. Jeromack, 150 AD2d 561 [2d Dept 1989]; see also Morreale v. Morreale, 84 AD3d 1187 [2d Dept 2011]). The power to stay should be exercised sparingly and only where the showing reveals strong equities in favor of the stay (see Croker v. New York Trust Co., 206 AD 11 [1st Dept 1923]; Matter of Weinbaum, 51 Misc2d 538 [Sur Ct Nassau County 1966]). The court finds that Nicholas has not met his burden in demonstrating that the equities lie in his favor such as would justify a stay. Based on the above, upon review of the record, the court exercises its discretion and declines to stay either proceeding. Request for an Injunction “Public policy mandates free access to the courts and zealous advocacy is an essential component of our legal system (Sassower v. Signorelli, 99 AD2d 358 [2d Dept 1984]). However, a “party may forfeit that right if she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will” (Matter of Molinari, 59 AD3d 722 [2d Dept 2013]; see also Matter of Wagner, 114 AD3d 1235 [4th Dept 2014]). Applying the above standard to the facts in the court record, that part of Nicholas’s motion made in the 2019 letters proceeding which requests an order requiring Evangelia to seek court approval in advance of filing any new proceeding is denied. However, based on the same court record in these proceedings, at this juncture, given the volume of motions which have been made, the court sua sponte will require all parties to seek court approval in advance of filing any new motion. That approval shall be sought by sworn statement of counsel setting forth the need for the relief. Upon receipt of the statement, the court will issue further instructions. Consolidation for the Purposes of Discovery and Trial “When proceedings pending before the court…involve a common question of law or fact, the court…on its own initiative may order a joint trial of any or all of the matters in issue or order the proceedings be consolidated or make such other orders concerning proceedings…as may tend to avoid unnecessary cost or delay” (see SCPA §501[2][a]; see also Matter of Leyden, 2019 NYLJ LEXIS 1158 [Sur Ct NY County 2019] [consolidating sua sponte beneficiary's miscellaneous proceeding against trustee to compel turnover of trust funds with the trustee's accounting proceeding]; Matter of Robinson, 2019 NYLJ LEXIS 881 [Sur Ct NY County 2019] [consolidating sua sponte SCPA §1809 validity of claims proceeding brought by fiduciaries of the deceased fiduciary with accounting proceeding filed by successor fiduciary]; Matter of Rappaport, 2018 NYLJ LEXIS 3431 [Sur Ct NY County 2018] [consolidating sua sponte miscellaneous petition for removal of fiduciaries with accounting proceeding by third fiduciary]; Matter of Buxton, 2003 NYLJ LEXIS 2250 [Sur Ct Westchester County 2003] [consolidating sua sponte compel proceeding with SCPA §2103 proceeding]; Matter of Winston, 1990 NYLJ LEXIS 4933 [Sur Ct Westchester County 1990] [consolidating sua sponte action transferred from Supreme Court seeking to enjoin corporate fiduciary from interfering in the management of estate asset with a construction proceeding]). Other factors to consider in issuing an order of consolidation and joint trial are its effect on the litigants and any unfair prejudice (see Matter of Osgood, 1992 NYLJ LEXIS 4545 [Sur Ct Nassau County 1992]). In the discretion of this court, consolidation and joint trial of the accounting proceedings with the discovery proceeding are ordered based on the following: (1) common questions of fact; (2) the discovery needed is nearly the same; (3) the parties are nearly the same: (4) Sotiri is a party to the turnover proceeding and has been involved in all (or nearly all) aspects of the discovery and motion practice in the accountings: and (5) the interests of judicial economy and litigant resources will be served. CONCLUSION As to the turnover proceeding, Nicholas and Sotiri are instructed to file answers by July 13, 2020. Thereafter, on August 26, 2020, counsel shall attend a discovery conference regarding the accounting and turnover proceedings. Counsel will be instructed as to the manner of the conference by email communication. With respect to the 2019 letters proceeding, Nicholas is instructed to file an answer by July 13, 2020. Thereafter, the matter will be submitted to the court on the pleadings. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT The following papers were considered: Motion to Dismiss Limited Letters Proceeding 1. Notice of motion filed on March 5, 2020; 2. Affirmation in support with exhibits filed on March 5, 2020; 3. Affirmation in opposition with exhibits filed on March 20, 2020; and 4. Reply affirmation filed on April 29, 2020; and Motion to Dismiss Discovery Proceeding 1. Notice of motion filed on March 5, 2020; 2. Affirmation in support with exhibits filed on March 5, 2020; 3. Affirmation in opposition with exhibits filed on March 20, 2020; and 4. Reply affirmation filed on April 29, 2020. Dated: June 5, 2020
