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In re Tschernia

Other Lower Courts

December 19, 2007

In the Matter of the Petition of Richard Tschernia, for a judgment declaring, Petitioner to be the owner of certain real property, located at 1728-1732 West Sunrise Highway, Merrick, New York, and imposing a constructive trust, in the Estate of Bernard Tschernia, Deceased.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Bahn Herzfeld Multer, (Counsel for Petitioner)

Greenberg Freeman LLP (Co-Counsel for Respondent)

Goldfarb Abrandt Salzman Kutzin LLP (Co-Counsel for Respondent)

OPINION

John B. Riordan, J.

This is an application for a preliminary injunction. The proceeding was commenced by Richard Tschernia by order to show cause and petition seeking a judgment declaring him to be the owner of real property located at 1728-1732 West Sunrise Highway, Merrick, New York (the Property), or imposing a constructive trust. The order to show cause, which was issued on November 9, 2007, contained a temporary restraining order restraining respondent, Beverly Polasko, and/or her agents from transferring, selling or otherwise encumbering the Property and from terminating the tenancy of First West Mortgage Brokers, Ltd. (First West) pending the return date of the order to show cause. Jurisdiction is complete.

On December 5, 2007, the court held a hearing on whether a preliminary injunction should issue. The hearing continued on December 6, 2007 and concluded the following day. Six witnesses, including Richard, testified on Richard's behalf. Beverly did not call any witnesses.

At the close of the hearing, the court vacated from the bench that portion of the temporary restraining order that restrained Beverly and/or her agents from terminating the tenancy of First West. The court issued a written order to that effect on December 11, 2007.

In addition to the pleadings, both sides have submitted several affidavits, as well as memoranda of law, in support of their respective positions. In lieu of oral closing arguments, counsel for each party has submitted a written closing statement with the court's permission. In his closing statement, Richard's attorney states that Richard also seeks a stay of any distributions to the beneficiaries from the trust pending a determination of this proceeding.

The decedent, Bernard Tschernia, died on August 15, 2007 a resident of Florida, leaving his spouse, Roberta, and four children from a prior marriage, Richard, Beverly, Jacqueline and Paul. Bernard and Roberta had a prenuptial agreement under which Roberta waived her rights to inherit or elect against Bernard's estate or the assets held in the Bernard and Pamela Tschernia Family Trust. Pamela was Bernard's first wife and the mother of Richard, Beverly, Jacqueline and Paul. Pamela died on December 18, 2001.

On October 16, 2007, Beverly filed a petition seeking letters testamentary as the nominated executor of Bernard's last will and testament dated June 11, 2007 and to probate the will. Paragraph 9 (a) of the probate petition lists the value of Bernard's improved real property located in New York State as $3,000,000. Paragraph 9 (b) states that Bernard does not have any other testamentary assets in New York State, except for a possible recovery from litigation against Richard regarding the transfer of stock in the mortgage brokerage business. On October 16, 2007, the court issued an order granting preliminary letters testamentary to Beverly.

Article II of Bernard's will states, in part, that Bernard "intentionally and with full knowledge failed to provide for Richard S. Tschernia and his issue in this Will and in the Survivor's Trust of Bernard Tschernia and Pamela Tschernia Family Trust."' Article IV of the will reiterates that " [e]xcept as otherwise provided herein," Bernard "intentionally and with full knowledge omitted to provide for" Richard. In the will, Bernard left his residuary estate to the trustee of the Survivor's Trust of the Bernard Tschernia and Pamela Tschernia Family Trust or, if that disposition was to be inoperative in whole or in part, to ...


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