Surrogate Gingold ESTATE OF ROBERT G. MAHLER, Deceased (19-4004/B);
ESTATE OF ROBERT G. MAHLER, Deceased, (19-4404/G) — There are two instant related motions before the court: The October 26, 2020 order to show cause of Joyce M. Duckles, Alison Mahler Bowie, and William Wolf (hereinafter, collectively “children”) seeking to permanently enjoin Miles P. Zatkowsky (hereinafter, “executor”), as the executor of the will of Robert Mahler, deceased (hereinafter, “decedent”), from selling cooperative apartments owned by the decedent (the “B” proceeding), and children’s July 5, 2022 petition to compel executor to account (the “G” proceeding). At issue is the disposition of the shares and respective leases for the cooperative apartments known as 9B and 9G located at 41 West Central Park West, New York, New York (hereinafter, collectively “apartments”). Pursuant to decedent’s will, the apartments were to pass through his residuary estate to children. Executor entered into a contract to sell both apartments to Lawrence Levy (hereinafter, “buyer”). Executor alleges that the sale was necessary to pay estate expenses. The children seek to enjoin executor from completing the sale of the apartments to buyer, alleging that executor knew that they wanted in-kind distribution of the apartments and that they offered to buy one apartment or otherwise forward funds to cover estate expenses. The basic timeline is as follows: After much communication between executor and children, executor hired Stephen P. Wald Real Estate Associates Inc. as real estate broker with an exclusive right to sell the apartments (hereinafter, “real estate agent”) effective May 4, 2020. On June 1, 2020, children informed executor by their attorney’s email to executor’s counsel that they did not consent to the sale of apartment 9B. On July 8, 2020, again via email between counsel, children stated that they did not consent to the sale of the apartments to a third party and offered to purchase apartment 9G for $825,000, its appraised price, in order give the estate liquidity. In that email executor was further advised that children’s position was that “any attempt to market 9G and 9B is in contravention of the Executor’s duties to the beneficiaries as stated in In re Sherburne, 95 A.D.2d 859 (2nd Dep’t 1983).” On August 28, 2020, through emails between counsel, children also agreed to pay the real estate broker $25,000 in commission. On September 10, 2020, executor’s counsel rejected children’s August 28, 2020, offer to buy apartment 9G at its appraised price. Children allege that their offer was rejected because they refused to agree to a global release and indemnification of the executor, a condition imposed by executor for the sale of 9G to them. Executor’s September 10, 2020, email rejecting children’s offer states that he believed that the total claims against the estate could exceed children’s offer and he suggested the parties go to mediation to settle their issues. Executor’s offer for mediation expired on September 17, 2020. Additionally, executor stated that an interim accounting was being prepared and would be forwarded to children upon competition. On September 16, 2020, children filed an order to show cause and petition seeking to enjoin executor from selling the apartments to a third party — the above captioned “B” proceeding. The order to show cause was entered October 26, 2020, with a November 20, 2020 return date and was served upon executor on October 27, 2020 by overnight mail. Executor filed his answer on November 16, 2020. As of April 2023, children allege that they have not received any account from executor. On October 19, 2020, executor entered into a contract of sale with buyer. On January 14, 2021, buyer filed an action in New York State Supreme Court, New York County (Index No. 650197/2021), seeking a preliminary injunction enjoining executor from transferring the apartments and for specific performance on the contract of sale. On January 14, 2021, a temporary restraining order was issued blocking the executor’s transfer of the apartments. To date, this restraining order is still in effect. Buyer’s action was transferred from the Supreme Court to Surrogate’s Court by decision and order dated February 16, 2021.
