Surrogate Anderson ESTATE OF DONNA C. SMIDT, Deceased (18-4193) — In the pre-objection stage of the probate proceeding in the estate of Donna C. Smidt, decedent’s son Clark (“movant”) brings a motion for an order expanding the time period for discovery beyond the time permitted under Rule 207.27 of the Uniform Rules for Surrogate’s Court (22 NYCRR 207.27) (the “3-2 Rule”). The proponent, decedent’s son Bart, opposes the motion. For the reasons stated herein, the motion is denied. Decedent died on August 17, 2018, at the age of 95, survived by her two sons. Bart offered for probate an instrument, dated November 14, 2011, which leaves decedent’s entire estate to him, to the exclusion of movant. The parties are now conducting pre-objection discovery (SCPA §1404). Movant seeks to expand the time frame for his discovery demands to include the time period starting on January 1, 2001, through August 17, 2018. Such period encompasses, inter alia, decedent’s execution of an inter vivos trust agreement for her lifetime benefit, dated November 9, 2001 (ten years before the will’s execution), in which movant was named as a remainder beneficiary of Connecticut real property, and an amendment of such trust, dated November 1, 2017 (six years after the will’s execution), in which movant was removed as such beneficiary. The 3-2 Rule provides that “[e]xcept upon the showing of special circumstances, the examination will be confined to a three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent’s death, whichever is the shorter period.” (22 NYCRR §207.27). While the statute refers to examinations before trial, caselaw has extended the 3-2 Rule to include all types of discovery (Matter of Partridge, 141 Misc 2d 159 [Sur Ct, Rockland County 1988]). The determination whether to expand the scope of discovery is within the discretion of the court (Matter of Constant, 128 AD3d 419 [1st Dept 2015]; Matter of Duzhansky, 153 AD 3d 819 [2d Dept 2017]). The purpose of the 3-2 Rule is to prevent the costs and burdens of a “runaway inquisition” (Estate of Das, NYLJ, May 1, 2009, at 31, col 3 [Sur Ct, Nassau County]). Courts have expanded the 3-2 Rule where sufficient facts have been alleged to prove an ongoing scheme of fraud or undue influence upon the decedent (Matter of Chin, 55 Misc 3d 1092 [Sur Ct, Queens County 2017]; Matter of Liebowitz, NYLJ, Feb. 29. 2016 [Sur Ct, New York County]) or where an in terrorem clause is present in the will (Matter of Nigro, NYLJ, Oct. 5, 2004, at 17, col 1 [Sur Ct, Nassau County]). In addition, courts have held that prior testamentary instruments fall outside the limitations of Rule 207.27 (See Matter of Llewellyn, NYLJ, Dec. 23, 2014[Sur Ct, NY County]; Matter of Manoogian, NYLJ, Feb. 28, 2014 [Sur Ct, NY County] [court allowed production of prior testamentary instruments but did not allow examinations as to such since special circumstances were not alleged). When special circumstances are based upon the allegation of undue influence or fraud, they must be evidenced by facts (Matter of Chin, supra; Partridge, supra). Movant argues that the will is the product of undue influence exercised by Bart, who lived with decedent and was her primary caregiver for the time period at issue. He alleges that Bart restricted decedent's access to visitors, including himself. Movant's supporting papers include, inter alia, copies of emails between himself and Bart (depicting an acrimonious relationship between the brothers), copies of financial accounts held jointly by decedent and Bart, copies of deeds evidencing decedent's transfer of trust property to Bart in 2003 and 2004, and copies of the 2001 trust agreement and the 2017 trust amendment. In addition, movant argues that discovery of the circumstances surrounding the trust's execution is necessary to explain discrepancies in decedent's estate plan (e.g., in the will provision disinheriting movant, decedent states that she made "other financial provisions" for movant during her lifetime, while the trust amendment, executed 6 years after the will, removed movant as a trust beneficiary. A review of the record fails to show an ongoing pattern of undue influence that would warrant extending discovery to periods so far removed from the will's execution. Accordingly, the court finds that movant has failed to establish "special circumstances" warranting the scope of disclosure beyond the time period set forth in Rule 207.27. This constitutes the decision and order of the court. Dated: December 30, 2022
ESTATE OF JOEL POMERANTZ, Deceased (16-4086/A) --- In this contested final accounting of the Public Administrator ("PA") in the Estate of Joel Pomerantz, the PA asks the court to determine the identity of decedent's distributees. Objections were filed by six alleged maternal first cousins once removed and two paternal first cousins once removed. Based upon the proof submitted at five kinship hearings before a court attorney-referee, the court finds that decedent was survived by two paternal first cousins once removed and four maternal first cousins once removed as his sole distributees. BACKGROUND Decedent never married or had children, either natural or adopted. Decedent's parents, Eva (Litvack) and Max Pomerantz both predeceased him. In addition to decedent, they had one other child, Ruth Pomerantz. Ruth also predeceased decedent and had no children, either natural or adopted. Paternal Side of the Family Decedent's paternal grandparents, Annie (Forman) and Harry Pomerantz, both of whom predeceased decedent, had three children: Jacob Pomerantz, Mordko Pomerantz and decedent's father, Max Pomerantz, all of whom predeceased decedent. Decedent's paternal uncle Jacob Pomerantz had two children, Lillian Pomerantz Wulwick and Sarah Pomerantz Billig, decedent's paternal first cousins, both of whom predeceased him. Lillian Pomerantz Wulwick had no children, either natural or adopted. Sarah Pomerantz Billig had two children, Harriet Billig Kline ("Harriet") and Natalie R. Billig DiCrescento ("Natalie"), decedent's alleged paternal first cousins once removed, both of whom survived decedent. Decedent's paternal uncle Mordko Pomerantz had three children: Bejla Pomerantz, Itzhak Shmuel Pomerantz and Mejer-Lejzer Pomerantz. Mordko predeceased decedent. So did each of his children, without issue. Thus, decedent was survived by two paternal first cousins once removed, Natalie R. Billig DiCrescento and Harriet Billig Kline. Maternal Side of the Family Decedent's maternal grandparents, Bessie (Rubinstein) Litvack and Jacob Litvack, both of whom predeceased Decedent, had two children: decedent's mother, Eva, and a son named George Litvack ("George"), decedent's maternal uncle, who died in 1963. George had two children, Lillian Litvack and Lawrence Litvack, decedent's maternal first cousins, both of whom predeceased decedent. Lillian had one child, Barbara Ann Miller Sidel, maternal first cousin once removed, who survived decedent. Lawrence had three children, Jack Litvack, Debra Litvack and Gina Litvack, decedent's alleged maternal first cousins once removed, all of whom survived Decedent. Thus, decedent's undisputed maternal first cousins once removed are: Barbara Ann Miller Sidel, Jack Litvack, Debra Litvack and Gina Litvack. However, two individuals, Polina Levenberg and Betia Pekerman, filed objections claiming to be members of decedent's maternal family. According to their objections, in addition to the decedent's mother and his uncle George, decedent's maternal grandparents had three additional children: Hanina Litvack ("Hanina"), Roman Litvack, and Perla Litvack Pekerman ("Perla"). Betia and Polina allege Hanina Litvack and his issue all predeceased decedent, having been killed during the Second World War. Further, they assert that Roman Litvack survived the Second World War and died in Russia in 1993. Roman's first wife and their children were killed during the War. He remarried but had no issue from his second marriage. They allege further that Perla Litvack Pekerman had three children: Genya Pekerman, Adelia Pekerman and Roman Pekerman. Perla and all three of her children predeceased decedent. They state that Roman Pekerman is their father, that Perla Litvack Pekerman is their grandmother, and therefore they are decedent's distributees. The record shows that decedent's grandfather, Jacob Litvack, immigrated to the United States in 1912, followed by his daughter Eva (born 1894) and son George (born 1896). Jacob's wife, Bessie Rubenstein Litvack, never immigrated to the United States. Eva married Max Pomerantz and had two children, Ruth and decedent, Joel. George married and had two children, Lillian and Lawrence Litvack. Lillian died in 2012; Lawrence died in 2001. The documentary evidence submitted by Polina and Betia, Polina's testimony, and the testimony of the other witnesses who testified on Polina's and Betia's behalf, set forth the following: According to a post-war Russian report of Nazi massacres during the Second World War, Jacob Litvack and Basia Gershkovna Litvack, as well as Perla Litvack were killed in the town of Dzerzhynsk during August 1942. Basia's Russian patronymic name, Gershkovna, translates to Gersh or George. Jacob and Bessie/Basia had a son named George, which may indicate that George was named after his maternal grandfather because according to Russian naming traditions, Basia's middle name meant that her father's name was Gersh or George. There are no records showing that Jacob Litvack (Eva and George's father) remained in the United States after 1913. When Polina was a child, she heard family conversations about her grandmother's brother named "Hersh" who had left to go to the United States. (She contends that "Hersh" is George Litvack). She also learned about Hersh from conversations between her father and her great-uncle about packages that Hersh sent them --- including a winter coat for her mother. Polina and Betia rely on the facts above to conclude that Perla Litvack Pekerman is the daughter of Jacob and Bessie/Basia Litvack, who were also the parents of Eva and George. DISCUSSION Under EPTL 4-1.1, for an alleged distributee to establish kinship, she must prove by a preponderance of the credible evidence that: (1) she and decedent share a common ancestor; (2) there are no other living distributees who are closer to decedent than the alleged distributee; and (3) there are no other alleged distributees with an equal or greater right to a distributive share than the alleged distributee (i.e., the class must be closed) (EPTL §4-1.1; Matter of Whelan, 93 AD2d 891 [2d Dept 1983]). Here, the contested issue is whether the Jacob Litvack who came to the United States in 1912 and is the father of decedent’s mother (Eva Litvack) and brother (George Litvak), is also the father and common ancestor of Perla Litvack Pekerman, through whom Polina Pekerman Levenberg and Betia Pekerman claim they are distributees of decedent’s estate. A review of the record reveals the following: 1. There is no evidence that the Bessie Rubenstein identified as the mother of Eva and George Litvack is the same person as Basia Gershkovna Litvack. 2. There is no evidence that Bessie Rubenstein Litvack ever immigrated to the United States. 3. There is no evidence that the Jacob Litvack who immigrated to the United States in 1912 is the same Jacob Litvack who died in Dzerzhynsk in 1942. 4. There is no evidence that Jacob Litvack: became a U.S. citizen, died in the United States, or left the United States to return to Europe. The last evidence of his being in the United States dates to September 1913, at which time he resided in Lynn, Massachusetts. 5. A genealogist called on behalf of Polina and Betia testified that “we have checked several sources to find information regarding Jacob in United States. We checked the death records, all the business directories, address books…and Jacob disappeared from United States.” 6. Because the genealogist could not find any naturalization records or passenger records for ships departing from the United States to Ukraine, she concluded that Yankel/Jacob returned to his hometown before the war. She stated, “we have no records on Yankel in the United States. It means he stayed only several years…maybe.” The court held five kinship hearings. After the fourth kinship hearing, the guardian ad litem (“GAL”) issued a report concluding that Polina and Betia had failed to sustain their burden of establishing they are maternal distributees of decedent. In response, counsel for Polina and Betia submitted a post-hearing memorandum, which included new evidence. The new evidence was a historical comment by a Dr. Henry Abramson, whom their counsel identified as an expert in Jewish history. After a conference with the court, the parties filed a stipulation in which they agreed the court would reopen the hearing. At the fifth hearing, Dr. Abramson testified as an expert in Jewish history. In relevant part, Dr. Abramson testified about certain aspects of Jewish immigration during the relevant time period. He concluded that it was more likely than not, that the Jacob Litvack who came to the United States in 1912 and was reportedly killed in 1942 during the Holocaust, is the same Jacob Litvack who was the father of Perla Litvack Pekerman, through whom Polina and Betia claim they are decedent’s distributees. Dr. Abramson, did not, however, provide any direct evidence that Jacob Litvack ever left the United States to return to his home in Russia. A review of the record reveals there is a lack of evidence regarding whether Perla Litvack Pekerman was the daughter of Jacob and Bessie/Basia Litvak. There is also a lack of evidence regarding Jacob Litvack’s whereabouts after 1913. CONCLUSION Based on the proof submitted at five kinship hearings, the court finds that Polina Pekerman Levenberg and Betia Pekerman have failed to satisfy their burden of proving by a preponderance of the evidence that they are decedent’s maternal first cousins once removed. The court is otherwise satisfied that diligent and exhaustive efforts have been made, without success, to determine whether other distributees exist, that more than three years have passed since decedent’s death, and that no claim to a distributive share in the estate has been made by any person other than the above-mentioned distributees. It is therefore determined that no distributees exist other than those established in the record before the court (SCPA §2225). Accordingly, the Public Administrator is directed to distribute one half of the net estate in equal shares to Barbara Seidel, Jack David Litvack, Debra Litvack and Gina Beth Litvack and the other half of the net estate in equal shares to Harriet Kline and Natalie R. Dicrescento. The Public Administrator shall supplement her account by affidavit and as so supplemented the account is settled. Settle decree. Dated: December 30, 2022
