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February 19, 1985

COLUMBIA CELENTANO, Plaintiff, against MANUEL FURER, individually and as Executor of the Estate of Abraham Furer, Defendant

The opinion of the court was delivered by: WEINFELD


Plaintiff commenced this action against the defendant individually and as executor of the estate of his father, decedent Abraham Furer. Jurisdiction is based upon diversity of citizenship.

Plaintiff's action centers about an alleged relationship with the decedent. In essence, plaintiff claims that in 1943 she entered into the employ of a dress manufacturing business owned and operated by the decedent; that thereafter, over a period of forty years until his death, she performed extraordinary services much beyond the requirements of her immediate position; that such services added materially to the success of decedent's business and the accumulation of his personal wealth; that, in addition, she performed many personal services, including nursing care when he was ill; that she was never compensated for any of the extraordinary services; and that from time to time through the years, decedent orally promised that he would by will, (1) leave her certain real property that he owned in Palisades Park, New Jersey, and (2) take care of her and make her a wealthy woman. Plaintiff further alleges that in consideration of such oral promises, she continued to render services and care, and to devote attention to decedent; that for two years prior to decedent's death she resided with him to take care of him more effectively; and that on November 9, 1982, he renewed his previously made oral promises by a written instrument, promising to bequeath to plaintiff the Palisades Park property and one-half of his life savings. Decedent is alleged to have subsequently breached the agreement by failing to make the promised bequests to her and instead bequeathing his entire estate to his son and sole surviving beneficiary, the defendant herein.

 Plaintiff seeks judgment against the defendant in both his fiduciary and individual capacities as follow: (1) damages for breach of the November 9, 1982 agreement, to be paid out of decedent's estate in an amount equal to the fair market value at decedent's death of the Palisades Park property and one-half of decedent's life savings, plus interest; (2) alternatively, specific performance and the imposition of a constructive trust over that portion of the estate assets that is the subject of the written agreement; (3) an accounting of all property defendant holds individually, or as executor of the estate, as a fiduciary; and (4) as an alternative to the first three claims, damages for unjust enrichment derived by decedent, and through him by the defendant, at plaintiff's expense.

 The defendant, in addition to a general denial of plaintiff's claims, pleads a number of affirmative defenses, including (1) that plaintiff's claims are barred by the statute of frauds, (2) that plaintiff exercised undue influence over decedent; and (3) that the November 9, 1982 document was obtained by duress, coercion or other improper means.

 Defendant moves to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, if there is jurisdiction, he urges the Court to abstain from exercising it. In support of his motion, the defendant relies upon what is referred to as the probate exception to the Court's diversity jurisdiction. The defendant argues that under the various claims asserted, plaintiff seeks to reach property now under administration of the Surrogate's Court of New York County where decedent's will was admitted to probate.

 It has long been settled that even where diversity jurisdiction exists, a federal court has no jurisdiction to probate a will, administer an estate, or entertain any action that would interfere with probate proceedings pending in a state court or with its control over property in its custody. *fn1" However, this limitation does not foreclose a federal court from exercising its jurisdiction to adjudicate rights to such property "where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." *fn2"

 Our Court of Appeals has stated in Lamberg v. Callahan:

The standard for determining whether federal jurisdiction may be exercised is whether under state law the dispute would be cognizable only by the probate court. If so, the parties will be relegated to that court; but where the suit merely seeks to enforce a claim inter parties, enforceable in a state court of general jurisdiction, federal diversity jurisdiction will be assumed. *fn3"

 Thus, under Lamberg, the issue turns on whether under state law the Surrogate's Court of the State of New York has exclusive jurisdiction of plaintiff's claim. Defendant does not dispute that under the Constitution of the State of New York, "the surrogate's court jurisdiction over plaintiff's claims is concurrent with the jurisdiction of the supreme court." *fn4" Rather, defendant relies upon an alleged policy of deference by the State Supreme Court to the Surrogate's Court with respect to such claims. *fn5" He argues that because of that policy, "[t]here is no doubt that, if plaintiff filed her complaint in the New York state courts, her claim would be adjudicated by the surrogate, not by a court of general jurisdiction," and, therefore, "the dispute would be cognizable only by the probate court," within the meaning of our Court of Appeals' decision in Lamberg. *fn6"

 It does not follow that because the State Supreme Court may, or even is likely to, exercise its discretion to defer to the Surrogate's Court, that in Lamberg 's terms, "the dispute would be cognizable only by the probate court" and not "enforceable in a state court of general jurisdiction." *fn7" Whatever the reason for such deference, it does not displace the Constitutional provision vesting in the State Supreme Court jurisdiction over probate matters. *fn8" The Supreme Court of the State of New York has the constitutional power to entertain such claims and it in fact has done so. *fn9" Moreover, a policy engaged in by judges of deferring to another court possessed of concurrent jurisdiction cannot vitiate the Constitutional grant of jurisdiction to the State Supreme Court.

 To adopt defendant's argument that the State Supreme Court's policy of deference is sufficient to satisfy Lamberg would require this Court to speculate as to a discretionary decision to be made by an individual State Supreme Court Justice, and would effectively render this Court's determination of its subject matter jurisdiction a function of State policies of judicial economy. *fn10" As our Court of Appeals has stated of the "probate exception," "the mere internal arrangement of the state courts" even if it results in "effectively exclusive jurisdiction of the 'probate' court is irrelevant to the existence of power to hear the cause." *fn11"

 This Court has power to entertain plaintiff's claims where their adjudication "does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." *fn12" The adjudication of a claim for recovery under a contract to make a will does not require this Court to probate a will, to interfere with the probate of an otherwise valid will, *fn13" or even to take control of property in the custody of the Surrogate's Court and subject to its in rem jurisdiction. *fn14"

 It may be that this Court does not have the power to grant plaintiff all of the relief sought in her complaint. However, clearly with respect to the plaintiff's claims (1) for damages for breach of the November 9, 1982 agreement, (2) alternatively for specific performance of the agreement, and (3) for unjust enrichment, they are claims against defendant individually and do not implicate or trench upon the Surrogate's power over the estate or the disposition of any property under its control by reason thereof. It may be argued that the claim for an accounting of all property held by defendant as an executor of the estate parallels that which the Surrogate may be called upon to determine. However, this claim for relief may be interpreted as applying "only [ ] to property that has been distributed to [defendant] as a legatee and is therefore no longer subject to the jurisdiction of the probate court." ...

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