In the Matter of Jacob Elberg, etc., deceased. Tamara Pewzner, respondent; Ruben Elberg, appellant. File No. 46/14
- March 1, 2018
Huebner & Associates, P.C., Brooklyn, NY, for appellant.
Johnson Liebman, LLP, New York, NY (Charles D. Liebman of
counsel), for respondent.
C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA
DECISION & ORDER
probate proceeding in which Tamara Pewzner petitioned for the
turnover of certain assets allegedly belonging to the estate
of Jacob Elberg, Ruben Elberg appeals from an order of the
Surrogate's Court, Kings County (Diana A. Johnson, S.),
dated April 21, 2015. The order, insofar as appealed from,
granted the motion of Tamara Pewzner to preliminarily enjoin
the distribution of the assets, and denied those branches of
the motion of Ruben Elberg which were pursuant to CPLR
3211(a)(1) to dismiss the turnover petition or,
alternatively, to direct Tamara Pewzner to post an
undertaking pursuant to CPLR 6312.
that the order is modified, on the law, by deleting the
provision thereof denying that branch of the motion of Ruben
Elberg which was to direct Tamara Pewzner to post an
undertaking, and substituting therefor a provision granting
that branch of the motion; as so modified, the order is
affirmed insofar as appealed from, without costs or
disbursements, and the matter is remitted to the
Surrogate's Court, Kings County, for the fixing of an
appropriate undertaking pursuant to CPLR 6312.
the decedent, Jacob Elberg, died in December 2013, his will
was admitted to probate, and letters testamentary were issued
to his daughter, Tamara Pewzner (hereinafter the petitioner),
and one of his sons, Ruben Elberg (hereinafter the
appellant). The petitioner subsequently filed a petition
seeking the turnover of certain assets she alleged belong to
the estate, including two limited liability companies owning
real estate and three corporations owning taxicab medallions.
The petitioner alleged that the decedent was the sole owner
of these assets, and the appellant claimed that he was the
sole owner of one of the taxicab corporations and a partial
owner of the other assets.
petitioner moved to preliminarily enjoin the distribution of
the assets in question. The appellant moved, among other
things, pursuant to CPLR 3211(a)(1) to dismiss the turnover
petition or, alternatively, to direct the petitioner to post
an undertaking pursuant to CPLR 6312. The Surrogate's
Court, inter alia, granted the petitioner's motion for a
preliminary injunction, and denied those branches of the
appellant's motion which were pursuant to CPLR 3211(a)(1)
to dismiss the petition or to direct the petitioner to post
motion pursuant to CPLR 3211(a)(1) to dismiss based on
documentary evidence may be appropriately granted only where
the documentary evidence utterly refutes [the]
plaintiff's factual allegations, [thereby] conclusively
establishing a defense as a matter of law" (25-01
Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 A.D.3d
850, 851 [internal quotation marks omitted]; see Goshen v
Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326).
"In order for evidence submitted under a CPLR 3211(a)(1)
motion to qualify as 'documentary evidence/ it must be
'unambiguous, authentic, and undeniable"'
(Cives Corp. v George A. Fuller Co., Inc., 97 A.D.3d
713, 714, quoting Granada Condominium III Assn. v
Palomino, 78 A.D.3d 996, 996-997). ''[r]t is
clear that judicial records, as well as documents reflecting
out-of-court transactions such as mortgages, deeds,
contracts, and any other papers, the contents of which are
'essentially undeniable,' would qualify as
'documentary evidence' in the proper case"
(Fontanetta v John Doe 1, 73 A.D.3d 78, 84-85,
quoting David D. Siegel, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at
21-22). Conversely, letters, emails, and affidavits fail to
meet the requirements for documentary evidence (see
Attias v Costiera, 120 A.D.3d 1281, 1283; Cives
Corp. v George A. Fuller Co., Inc., 97 A.D.3d at 714;
Fontanetta v John Doe 1, 73 A.D.3d at 87).
the evidence submitted by the appellant in support of his
motion either did not constitute documentary evidence within
the meaning of CPLR 3211(a)(1), was contradicted by other
record evidence, or failed to utterly refute the
petitioner's allegations or conclusively establish a
defense as a matter of law (see 25-01 Newkirk Ave., LLC v
Everest Natl. Ins. Co., 127 A.D.3d at 851; Rabos v
R&R Bagels & Bakery, Inc., 100 A.D.3d 849, 851).
Accordingly, we agree with the determination of the
Surrogate's Court to deny that branch of the
appellant's motion which was pursuant to CPLR 3211(a)(1)
to dismiss the turnover petition.
Surrogate's Court also providently exercised its
discretion in granting the petitioner's motion to
preliminarily enjoin the distribution of the assets in
question, inasmuch as the petitioner demonstrated (1) a
likelihood of success on the merits, (2) irreparable injury
absent the granting of the preliminary injunction, and (3)
that a balancing of equities favors her position (see
Montauk-Star Is. Realty Group v Deep Sea Yacht &
Racquet Club, 111 A.D.2d 909, 910; Family Affair
Haircutters v Detling, 110 A.D.2d 745, 747). However,
since CPLR 6312(b) clearly and unequivocally requires the
party seeking an injunction to give an undertaking (see
Ying Fung Moy v Hohi Umeki, 10 A.D.3d 604, 605), the
court should have granted that branch of the appellant's
motion which was to direct the petitioner to post an
undertaking. Accordingly, we must remit this matter to the
Surrogate's Court, Kings County, for the fixing of an
appropriate undertaking pursuant to CPLR 6312 (see
Gaentner v Benkovich, 18 A.D.3d 424, 427).
appellant's remaining contentions are without merit.
DILLON, J.P., LASALLE, BARROS and ...