Decision and Orders signed: October 1 & 7, 2024 Surrogate Gingold
ESTATE OF IGOR MALASHENKO, Deceased (19-1517/C) — Bozhena Malashenko (Bozhena), the surviving spouse of the decedent Igor Malashenko, brings this proceeding under SCPA 2205, individually and on behalf of her minor daughter Evgeniia-Dzhekki Malashenko (Evgeniia), to compel an accounting by Elizaveta Malashenko (Elizaveta), as executor of the estate. Elizaveta moves pursuant to CPLR 3211(a) to dismiss this proceeding based on Bozhena’s alleged lack of standing, or, alternatively, to stay this proceeding pending the outcome of the estate’s petition to determine the validity of the surviving spouse’s elective share. Background Born in 1954, decedent was a prominent figure in Russia’s political and media spheres. He served as an advisor to Mikhail Gorbachev, worked as a political consultant for Boris Yeltsin’s re-election campaign, and was also the chief operating officer of NTV, a large commercial TV company in Russia which provided coverage of the war in Chechnya in the 1990s. In 1980, he married his first wife, Elena Malashenko (Elena), and they had three children: Elizaveta, Elena Malashenko, and Vladimir Malashenko. In 2001, after Vladimir Putin was elected president, decedent decided to leave Russia out of concern for his safety and the safety of his family. He moved to the United States with his family and purchased a condominium apartment in New York City. Decedent continued to live in New York with his family for the next ten years, working for RTV, an independent international Russian TV company. In 2012, decedent began returning to Russia, where he met Bozhena. He continued his relationship with Bozhena until his death in 2019, working and living with her throughout the world. Ultimately, decedent obtained a divorce from Elena in Russia and married Bozhena in 2018. Less than a year later, in February 2019, decedent died tragically by suicide in Spain. After his death, Bozhena allegedly conceived a child from decedent’s genetic material. The child, Evgeniia, was born on March 5, 2020, in Russia. After his death, Elizaveta filed a petition to probate decedent’s last will and testament, which was executed by decedent in New York on November 2, 2016. The will states that it governs the disposition of decedent’s worldwide assets, except for any assets located in Russia that are disposed of under decedent’s Russian will. Beyond a specific bequest of tangible property to Elena, decedent’s spouse at the time, the entire residue of his estate pours over into a revocable trust which was created on the same date. The will nominates Elena as executor of decedent’s estate and names Elizaveta as her successor. On April 25, 2019, this court issued preliminary letters testamentary to Elizaveta, decedent’s daughter from his first marriage to Elena. Elizaveta, as preliminary executor of decedent’s estate, was then substituted for decedent in the on-going matrimonial action between decedent and his first wife Elena pending in the Supreme Court, New York County (Malashenko v. Malashenko, Index No. 350015/2018 [Hoffman, J.]). This action was ultimately settled on February 28, 2020, on terms that Bozhena claims were overly favorable to Elena and contrary to the best interests of the estate. On October 21, 2021, this court issued a decision finding that decedent’s November 2, 2016, will was valid. The court stated that Bozhena’s objections, which concerned the identification and valuation of the decedent’s assets and the allegedly improper settlement of the divorce action, had no bearing on the validity of the will and could be raised in a fiduciary accounting proceeding. Thus, on January 18, 2022, the decedent’s will was admitted to probate and letters testamentary issued to Elizaveta. Bozhena now bring this proceeding pursuant to SCPA 2205 to compel Elizaveta to account for her actions as executor of the decedent’s estate. Bozhena filed her petition in her individual capacity, as decedent’s surviving spouse and an allegedly interested party under SCPA 2205(2)(b), and on behalf of her daughter, Evgeniia, a child born after the making of the will under SCPA 2205(2)(d). In lieu of filing an answer, Elizaveta moves to dismiss the petition under CPLR 3211(a)(1), (3), and (7). In essence, Elizaveta argues that Bozhena lacks standing to bring this proceeding in either capacity because neither she, nor her daughter Evgeniia, have an interest in the estate. In the alternative, Elizaveta moves to stay this proceeding pending the outcome of the estate’s proceeding under SCPA 1421 to determine the validity of Bozhena’s elective share under EPTL 5-1.1-A. Bozhena opposes the motion. Discussion On a motion to dismiss pursuant to CPLR 3211 (a)(1) and (7), the court is required to accept all of the allegations in the pleading as true, and to draw all inferences from those allegations in the light most favorable to petitioner, unless the documentary evidence conclusively disproves an alleged fact (Devash LLC v. German American Capital Corp, 104 AD3d 71 [1st Dep't 2013]). Under CPLR 3211(a)(3), a proceeding may be dismissed based on lack of standing where the petitioner has no cognizable stake in the outcome of the litigation (Community Board 7 of the Borough of Manhattan v. Schaffer, 84 NY2d 148, 154 [1994]). The burden is on the movant to establish, prima facie, the petitioner’s lack of standing as a matter of law (Berger v. Friedman, 151 AD3d 678, 679 [2d Dep't 2017]). To defeat the motion, the non-moving party has no burden of establishing standing as a matter of law but rather the motion will be defeated if the submissions raise a question of fact as to standing (New York Community Bank v. McClendon, 138 AD3d 805, 806 [2d Dep't 2016]). SCPA 2205(2) provides that only certain parties have standing to seek a compulsory accounting of an estate. This includes “a person interested”, which is defined as “[a]ny person entitled or allegedly entitled to share as beneficiary in the estate” (SCPA 103 [39]). It is undisputed that Bozhena is not a beneficiary of decedent’s estate. Her alleged interest in the decedent’s estate is based solely on her alleged right of election as decedent’s surviving spouse. Here, Bozhena filed a notice of spousal election dated June 3, 2019, against decedent’s estate. Elizaveta argues that Bozhena is not entitled to her elective share under EPTL 5-1.1-A(c)(6) because the right of election “is not available to the spouse of a decedent who was not domiciled in this state at the time of death, unless such decedent elected…to have the disposition of his or her property situated in this state governed by the laws of this state.” Elizaveta argues that decedent was not a New York domiciliary at the time of his death and thus, under EPTL 5-1.1-A(c)(6), the right of election is unavailable to Bozhena. Domicile is defined as “a fixed, permanent and principal home to which a person wherever temporarily located always intends to return” (SCPA 103[15]). The primary difference between a residence and a domicile is that residence merely means “being in a particular locality,” but it is the “intent to make it a fixed and permanent home” that makes “it one’s domicile” (Matter of Newcomb, 192 NY 238, 250 [1908]; Matter of Orejas, 12 Misc3d 1172(A), at *4 [Sur Ct, Bronx County 2006]). Thus, “[a] person may have several residences, but only one domicile” (Matter of Meyer, 62 AD 133, 139 [1st Dep't 2009]). “The determination of an individual’s domicile is ordinarily based on conduct manifesting an intent to establish a permanent home with permanent associations in a given location” (Matter of Ranftle, 108 AD3d 437, 441 [1st Dep't 2013]). The issue of a person’s domicile “is generally a mixed question of fact and law” (Matter of Brunner, 41 NY2d 917, 918 [1977]). No single factor is dispositive and the facts and circumstances of each case must be considered in making this determination (Matter of Ranftle, 108 AD3d at 441). Here, Elizaveta argues in support of her motion that decedent was a Russian domiciliary at the time of his death. In support, she submits proof, including sworn statements from decedent which were submitted in the New York matrimonial action, in which he describes his deep connection to Russia and the distinguished career he had there before he left (Affidavit of Elizaveta Malashenko sworn to July 27, 2023, Exh. E,
