The following papers were read in determining three motions and one order to show cause: Papers Numbered Notice of Motion to Dismiss Cross-Petition-Affirmation in Support 1-2 Affirmation in Opposition-Memorandum of Law 3-4 Reply Affirmation and Exhibits 5 Notice of Cross-Motion to Dismiss Petition — Affirmation in Support and Exhibits 6-7 Memorandum of Law 8 Affirmation in Opposition and Exhibits 9 Reply Affirmation and Exhibits 10 Order to Show Cause seeking Preliminary Injunction — Affirmation in Support — Memorandum of Law in Support 11-14 Affirmation in Opposition 15 Notice of Cross-Motion for Restraining Order — Affirmation — Exhibits 16-18 DECISION & ORDER Before the court are competing applications to probate the last will and testament of June Tanghow, dated June 8, 2016. The sole issue raised by the cross-petitioner’s pleading is the eligibility of the nominated executor to serve based upon allegations of misconduct pursuant to SCPA 707(1)(d). Both parties move to dismiss the opposing petition, as well as for injunctive relief. Decedent died on February 11, 2020, leaving one daughter, Terri-Ann Macheroux (Macheroux or Cross-Petitioner) as her sole distributee. Under the propounded instrument, dated June 8, 2016 (Will), decedent nominated her sister-in-law Sayyeeda Dayal (Dayal or Petitioner), to serve as executor. Decedent’s daughter, the sole beneficiary under the Will, is nominated as the successor executor. On June 22, 2020, Dayal filed a petition to probate the decedent’s Will seeking appointment as executor. Thereafter, Macheroux filed a cross-petition seeking probate of the Will, but asking the court to appoint her as administrator cta. Macheroux filed objections to Dayal’s petition solely to the extent that it seeks the disqualification of Dayal as the nominated executor. Preliminary letters testamentary issued to Dayal on November 3, 2022. Motions to Dismiss Petition and Cross-Petition In seeking to dismiss the opposing probate petition, both parties fail to cite the provision of the CPLR under which they are moving.1 Since objections were filed here, i.e., issue has been joined, the court will treat each motion as one for summary judgment pursuant to CPLR 3212 (see Tufail v. Hionas, 156 AD2d 670 [2d Dept 1989] [where issue had been joined, court should not have deemed unlabeled motion as motion to dismiss, but rather as one for summary judgment], citing Rich v. Lefkovits, 56 NY2d 276 [1982]). Summary judgment is appropriate when the movant’s case has been “established sufficiently to warrant the court as a matter of law” to direct judgment, but will be denied if the opposing party shows “facts sufficient to require a trial of any issue of fact” (CPLR 3212[b]; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980] The party seeking summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material fact” (Alvarez at 324 [citations omitted]). If such a showing is made, the party opposing summary judgment must demonstrate genuine triable issues of fact, supported by allegations that are specific, detailed and substantiated by admissible evidence (see Towner v. Towner, 225 AD 2d 615 [2d Dept 1996]. Mere conclusory assertions will not suffice (See McGahee v. Kennedy, 48 NY2d 832 [1979]; Matter of O’Hara, 85 A5 AD2d 669 [2d Dept 1981]). The sole issue raised by Macheroux in her objections is the eligibility of Dayal to serve as a fiduciary considering alleged misconduct under SCPA 707(1)(d), which, if true, would make Dayal ineligible to serve as a fiduciary. Courts have long held that a testator’s nomination of a fiduciary is to be granted great deference and honored absent one or more grounds for disqualification pursuant to SCPA 707 (see Matter of Leland, 219 NY 387 [19112; Matter of Flood, 236 NY 408 [1923]. Such statute enumerates several grounds for the disqualification of a nominated fiduciary, including where a person “does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office” (SCPA 707[1][d]). The party alleging that a nominated executor is ineligible to serve by reason of one of the disqualifying conditions enumerated in SCPA 707 has the burden of proof (see Matter of Krom, 86 AD2d 689 [3d Dept 1982]. In her objections, Macheroux alleges that Dayal removed estate property from decedent’s home after her death. She states that she and her husband witnessed the alleged theft. However, in her moving papers, Macheroux fails to provide any competent evidence to support her allegations of misconduct. Her proof consists solely of an attorney affirmation which repeats the allegations asserted in her pleading. Noticeably absent from her papers is an affidavit or affirmation from someone with first-hand knowledge setting forth salient facts that would otherwise raise an issue of fact as to her claim that Dayal wrongly misappropriated decedent’s personalty (see Gentile v. 2400 Johnson Avenue Owner, Inc., 224 AD 3d 542 [1st Dept 2024] [motion denied where movant's proof consisted only of attorney affirmation]; Alvarez at 327 [1986]). Macheroux has failed to submit any evidence in admissible form in support of her cross-motion. Accordingly, since Macheroux has failed to make a prima facie showing of entitlement, her cross-motion is denied. Turning to Dayal’s motion to dismiss Macheroux’s cross-petition, Dayal is entitled to serve as executor unless it can be shown that she is ineligible under SCPA 707. As previously stated, the burden of proof falls to the party alleging ineligibility (see Matter of Krom, 86 AD2d 689 [3d Dept]). Here, Macheroux has failed to produce any competent evidence which would require a hearing on Dayal’s eligibility to serve as fiduciary. In addition, Dayal has refuted the misconduct allegations with sufficient particularity and detail. Accordingly, Dayal’s motion to dismiss the cross-petition is granted. Motions for Injunctive Relief Both parties move for injunctive relief. Macheroux seeks an order restraining Dayal, as preliminary executor, from selling, transferring or encumbering the estate’s cooperative apartments and from evicting the tenants of such apartments until a final determination is made in this proceeding. Dayal cross-moves for an order restraining Macheroux from interfering with the “marshaling and sale” of the cooperative apartments, and for the imposition of costs and sanctions. Such relief is not appropriate in the context of a probate proceeding, where the sole issue is the validity of the will. Accordingly, it is ORDERED that Petitioner’s motion to dismiss Macheroux’s cross-petition is granted; and it is further ORDERED that Cross-Petitioner’s motion to dismiss Dayal’s petition is denied in its entirety; and it is further ORDERED that Cross-Petitioner’s motion for a preliminary injunction is denied in its entirety, and it is further ORDERED that Petitioner’s cross-motion for a temporary restraining order is denied in its entirety. Settle probate decree. Dated: June 11th, 2024
