Matter of GRACE HANLON, (22-2/A) Deceased — In this contested proceeding seeking the turnover of specifically devised real property, respondents Judith Planty (“trustee”) and the Roman Catholic Church of Saints Simon and Jude (“trust beneficiary”) move for an order striking the second amended petition of Merlene Dinnal (“petitioner”) dated August 2, 2017, or in the alternative, for leave to file amended objections pursuant to CPLR 3025 (b). Respondents David G. Sewell (“executor”) and Office of the Attorney General of the State of New York (“OAG”) cross-move for essentially the same relief. In opposition, Petitioner cross-moved for an order seeking recusal of the King’s County Surrogate pursuant to 22 NYCRR 100.2; vacatur of a prior order of that Court dated July 14, 2016 as void for “lack of subject matter jurisdiction” pursuant to CPLR 2221; the vacatur,nunc pro tunc, of the order of that Court dated January 13, 2020 pursuant to CPLR 2221 on the basis that it “…contravenes SCPA 509;” an approval of a 2017 amended petition pursuant to CPLR 2221 and SCPA 509; dismissal of the instant motion and cross-motions to strike the 2017 amended petition; and awarding sanctions against the respondents who brought the instant motion and cross-motions. The pertinent background of this matter is as follows: On September 11, 1997, Grace Hanlon executed a trust agreement entitled the Hanlon Family Trust, naming herself as the trustee during her lifetime and Judith Planty as the successor trustee upon Grace’s incapacity or death. On April 21, 1998, a deed was recorded transferring real property located at West 4th Street, Brooklyn, New York from “Grace Hanlon” to “Grace Hanlon as trustee.” The residuary beneficiaries of the trust consist of Robert Mennell (20%); Eugene Erb (20%); Saints Simon and Jude Roman Catholic Church (10%); Irene Walmsley (10%); Richard Orenge (10%); Maryknoll Fathers and Brothers (5%); Deafness Research Foundation (5%); Covenant House (5%); Fathers of St. Edmund (5%); Eye Bank for Sight Restoration, Inc. (5%); and Mercy Boys’ Home (5%). Grace Hanlon died on October 19, 2011, and an instrument purporting to be her last will and testament dated April 30, 2011 was admitted to probate by decree dated June 2, 2014 (Johnson, S.) and letters testamentary issued to the executor.1 A provision in this instrument specifically devised the subject property to the petitioner, who had been the decedent’s home healthcare aide. Based on the probate decree, petitioner commenced the instant turnover proceeding pursuant to SCPA 2102 (4) in July of 2015 seeking an order, inter alia, directing the executor and the trustee to turn the subject real property over to her. On October 9, 2015 petitioner filed an amended petition which sought, in addition to the turnover of the real property, six alternative requests for declaratory relief. Answers and/or objections to this amended petition were filed by OAG, the executor, the trustee and trust beneficiary. Thereafter petitioner moved for summary judgment pursuant to CPLR 3212. By decision and order dated July 17, 2016, Surrogate Johnson made a finding that the “…subject property was clearly transferred into the trust and remained therein at the time of the decedent’s demise.” She also found that “…it appears that the decedent reserved a general testamentary power of appointment (EPTL 10-3.2 and EPTL 3-3.3) for herself and/or any successor trustee allowing her or the successor trustee to dispose of any property in the trust by the decedent’s will.” Finally, the Surrogate found that decedent’s intent in the manner in which the power of appointment was to be exercised and whether she manifested her intent to exercise her power pursuant to the statute was “ambiguous” from the documents presented and that the “…decedent’s intent with regards to the proper exercise of her power of appointment is an issue of fact.” On that rationale petitioner’s motion and the cross-motion of the OAG for summary judgment were denied. Petitioner’s subsequent motion for “leave to reargue” was denied by Surrogate Johnson on January 9, 2017, which was affirmed by the Appellate Division, Second Judicial Department, on February 27, 2019. Petitioner thereafter moved, inter alia, for an order granting leave to file a second amendment to her petition. Attached to the papers was a proposed second amended pleading as Exhibit Y. Her attorney indicated in his affirmation in support that the amendment would be identical to the present amended petition, but “would simply” add two new branches of alternative relief: (iv) dismissal of any obligation on the part of the petitioner to pay any real estate taxes on the property pursuant to Article Second of the Will; and (v) declaratory judgment that resolution of this Petition is in the common interest of the estate of Grace Hanlon.
By decision and order dated July 5, 2017, Acting Surrogate Ingram granted this branch of the motion “…to the extent that the petitioner is hereby granted leave to file an amended petition amending the portions of the petition upon which no determination has been made within 30 days of the date of this Decision and Order.” Of note, the Acting Surrogate did not make specific reference to the proposed amended petition that was attached to the motion papers in his decision and order. So, it appears the Court may have wanted petitioner to file a petition different from that submitted. Nevertheless, on August 2, 2017 petitioner filed a second amended petition that was identical to that attached to the motion papers. This amended petition, therefore, contained claims for relief which had previously been denied by the court. The court record, however, does not contain an affidavit of service indicating that a copy of this second amended petition was served upon all of the interested parties, and, apparently, the trustee, the OAG, and the executor never served amended answers to the second amended petition. The following month petitioner filed a note of issue in this proceeding. Her counsel signed a certificate of readiness for trial indicating that all pleadings were served and discovery was completed. Her attorney also signed an affirmation of compliance requesting that the matter be promptly placed on the trial calendar. One month later, in October, 2017, petitioner moved for a second time, apparently based on the second amended petition, for summary judgment “…dismissing the answers, objections or counter-claims of the Respondents and granting the Petitioner the relief sought in the [second amended petition].” Although petitioner’s motion papers makes no mention of any alleged default in answering the second amended petition, petitioner’s attorney’s reply affirmation raised the issue. Acting Surrogate Ingram, by decision and order dated April 10, 2018 denied petitioner’s motion, finding Surrogate Johnson’s findings specifically regarding the title to the property and the questionable exercise of the power of appointment to be the “…law of the case.”2 Thereafter, again based on the record before the court, by order dated January 13, 2020 Surrogate Thompson referred certain issues to a referee for a hearing to take the evidence and report back to the Court. It appears neither a hearing was held nor a report submitted. In October of 2020, the parties served and filed the instant motion and cross-motions. The following papers were submitted to Surrogate Harriet L. Thompson for consideration in deciding the motion and cross-motions: Notice of motion, affirmation and exhibits by trustee and trust beneficiary; Notice of cross-motion, affirmation and exhibits by OAG; Notice of cross-motion, affirmation and exhibits by executor; Notice of cross-motion, memorandum of law, affirmation and exhibits by petitioner; Affirmation in opposition to petitioner’s cross-motion by OAG; Affirmation in opposition to petitioner’s cross-motion by trustee and trust beneficiary; Affirmation in opposition to petitioner’s cross-motion by executor; Reply affirmation in support of petitioner’s cross-motion and exhibits by petitioner; Affirmations to disregard petitioner’s reply by OAG; Affirmation in response to affirmation to disregard petitioner’s reply by petitioner.
