Dolloff v. Dolloff (In re Estate of Dolloff)

Citation2015 N.Y. Slip Op. 25219,49 Misc.3d 440,12 N.Y.S.3d 848
Decision Date29 June 2015
Docket Number2011-4397/B
PartiesIn the Matter of the ESTATE OF Lawrence J. DOLLOFF, Deceased. Susan Dolloff, Petitioner, v. Mary Dolloff, as [Administrator CTA] of the Estate of Lawrence Dolloff, Lexington Insurance Company, New York State Department of Insurance n/k/a New York State Department of Financial Services, Theodore R. Sobolewski, Toyota Financial Services, Mary Dolloff a/k/a Mary Gian, Sara Dolloff a/k/a Sara Hilligas, and Mark Dolloff, Respondents.
CourtNew York Surrogate Court

49 Misc.3d 440
12 N.Y.S.3d 848
2015 N.Y. Slip Op. 25219

In the Matter of the ESTATE OF Lawrence J. DOLLOFF, Deceased.

Susan Dolloff, Petitioner
v.
Mary Dolloff, as [Administrator CTA] of the Estate of Lawrence Dolloff, Lexington Insurance Company, New York State Department of Insurance n/k/a New York State Department of Financial Services, Theodore R. Sobolewski, Toyota Financial Services, Mary Dolloff a/k/a Mary Gian, Sara Dolloff a/k/a Sara Hilligas, and Mark Dolloff, Respondents.

2011-4397/B

Surrogate's Court, Erie County, New York.

June 29, 2015.


12 N.Y.S.3d 849

Arthur J. Rumizen, Esq., for Mary Dolloff, Administrator CTA.

McGee & Gelman, Roger B. Simon, Esq., of Counsel, for Susan Dolloff.

Zdarsky, Sawicki & Agostinelli LLP, Joseph E. Zdarsky, Esq., of Counsel, for Susan Dolloff.

Platzer, Swergold, Levine, Goldberg, Katz & Jaslow, LLP, Stan L. Goldberg, Esq., and Linda Mandel Gates, Esq., of Counsel, for Lexington Insurance Company.

Timothy M. O'Mara, Esq., Attorney for Mary Dolloff a/k/a Mary Gian, Sara Dolloff a/k/a Sara Hilligas, and Mark Dolloff.

Eric T. Schneiderman, Esq., NYS Attorney General, Jennifer Principe, Esq., of Counsel, for New York State Insurance Department n/k/a the Department of Financial Services.

Opinion

BARBARA HOWE, J.

49 Misc.3d 441

Decedent died at age 68 on September 19, 2011, survived by three adult children. His Will, dated March 19, 2002, nominated

12 N.Y.S.3d 850

his then-wife, Susan, to be the fiduciary of his estate.1

By petition verified January 6, 2012, decedent's daughter, Mary Dolloff, sought to become administrator CTA of the estate, “for the sole purpose of [defending] an action entitled

49 Misc.3d 442

Susan F. Dolloff v. HSBC Bank USA, HSBC Mortgage Corp, Lawrence J. Dolloff, et al '—Supreme Court, Erie County, Index No.2009–7576.” Susan, who had been divorced from decedent in 2008, and the alternate nominated fiduciaries executed renunciations, and, by decree dated February 6, 2012, decedent's Will was admitted to probate and Mary was appointed administrator CTA with restrictions and limitations as requested in her petition.

In June 2013, the United States Life Insurance Company in the City of New York [hereafter, U.S. Life], brought a motion in this estate matter pursuant to EPTL 5–1.4(d)(2) seeking permission to deposit into court $1,300,000 in proceeds under a certain policy issued by U.S. Life insuring decedent's life, asserting in its motion papers that it “is no more than an uninterested third-party” as to who should receive the policy proceeds. Susan, who was named the beneficiary under the policy in 2002, opposed the motion, arguing that this Court should pay over the policy proceeds to her. The estate's position on the U.S. Life motion, as reflected in an affirmation from the administrator's attorney, was that

“division of the proceeds from this policy is substantially a question of law for the court to determine. This is based upon the fact that all parties are aware that Susan Dolloff maintained the policy in question by paying the premiums until the death of her former husband, Lawrence J. Dolloff ” (emphasis added).

By Memorandum and Order dated August 22, 2013, I granted the application by U.S. Life, and directed that the subject policy proceeds be paid into court by depositing those proceeds with the Erie County Treasurer.

On September 13, 2013, full letters of administration CTA were issued to Mary, upon her amended petition for such relief.

In March, 2014, Susan filed a verified petition in this court seeking a determination that she is entitled to all or some of the proceeds of the $1,300,000 life insurance policy. Susan also sought the imposition of a constructive trust in her favor over the proceeds as part of her alternate grounds for relief. In her petition, Susan named the estate as a party-respondent, as well as the Lexington Insurance Company [hereafter, Lexington]. Lexington was named by Susan, according to her petition, because, “[u]pon information and belief ... [Lexington] is a

49 Misc.3d 443

creditor of Decedent's Estate.” Lexington answered the petition and “cross-moved” for summary judgment.2

By Memorandum and Order dated September 19, 2014, I concluded that Susan's proceeding was one for advice and direction pursuant to SCPA 2107 (see

12 N.Y.S.3d 851

Matter of Mastroianni, 105 A.D.3d 1136, 962 N.Y.S.2d 780 [2013] ). I further found that jurisdiction had not been obtained over all necessary parties, and that, in addition, issue had not been joined even as to all of those parties who were then before the Court in the proceeding. Finally, I found that a motion for summary judgment by Lexington seeking to dismiss the petition was, under all the circumstances, premature.

Following my September 19, 2014, decision, and in accordance with my directions, Susan filed an amended petition naming all necessary parties to her proceeding. An amended order to show cause was then issued by this Court, and service was timely made on all parties. When the parties were next before the Court in November, 2014, a verbal scheduling order was made (a) that necessary pleadings were to be filed so that issue was properly joined, (b) that Lexington's original “cross-motion” would then go forward (as it requested) as a summary judgment motion, and (3) that all parties had an opportunity to serve and file whatever papers (or additional papers) in regard to the summary judgment motion they deemed appropriate. Those scheduling directions have since been complied with.

Susan's amended advice and direction petition seeks, as noted supra, a direction from this Court that she is entitled to some or all of the $1,300,000 U.S. Life policy proceeds, and she advances various reasons why this is so. Lexington, the estate, and DFS, contend that no part of the policy proceeds should be paid to Susan. Decedent's three children—Mary, Mark and Sara—in their answer verified by each on November 26, 2014, take the following position:

“Answering Respondents, MARY DOLLOFF a/k/a MARY GIAN, SARA DOLLOFF a/k/a SARA HILLIGAS and MARK DOLLOFF, individually, and as
49 Misc.3d 444
the only children of the deceased, LAWRENCE DOLLOFF, assert that the Decedent's pre- and post-divorce activity and actions clearly establish his intent that SUSAN DOLLOFF be the named beneficiary of the policy in question. Respondents respectfully request that the Amended petition be granted or, in the alternative, that a hearing be conducted concerning the continuation of the policy in its full force and effect” (emphasis added).

Issue having been joined, and all parties having had an opportunity to submit papers on Lexington's motion for accelerated judgment, I now find and decide as follows.

(A)

(i)

Susan and decedent were married in 1971, and there were three children of that union. Decedent, according to DFS, was an “excess lines [insurance] broker”, operating “by virtue of a license granted pursuant to New York State Insurance Law § 2105 ” under the corporate name of “L.J. Dolloff & Associates, Inc.”3

On December 4, 2007, Susan and decedent entered into and executed a “Matrimonial Separation and Settlement Agreement” [hereafter, the MSA], which was incorporated but not merged into an April 14, 2008, judgment of divorce. The MSA provided, inter alia, that decedent would make Susan the “irrevocable beneficiary” of life insurance proceeds “in the face amount of $500,000.”

In 2002, well prior to their divorce, Susan had been named by decedent as the

12 N.Y.S.3d 852

beneficiary of the subject U.S. Life policy, which was issued on June 4, 2002. On November 30, 2009, after he and Susan had been divorced for 19 months, decedent executed and delivered to U.S. Life a document specifically relating to the subject policy in which he gave Susan “the authority to manage my account from this day forth. She also has power of attorney which I have enclosed” (emphasis added). This authorization was allegedly never revoked by decedent, and it was apparently in full force and effect at his death nearly two years later [September 19, 2011]. Throughout some or all of the

49 Misc.3d 445

post-divorce period in question, Susan indicates that she paid the U.S. Life policy premiums.

In opposing the relief sought by Lexington, Susan submitted a June 20, 2014 affidavit in which she recounts in some detail the history of the 2002 U.S. Life policy, other insurance owned by decedent, and matters leading to her separation4 and divorce from decedent. She also provided details about the MSA, which, insofar as immediately relevant here, are as follows:

“The United
...

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6 cases
  • Best v. Best
    • United States
    • Wyoming Supreme Court
    • September 30, 2015
    ...have also held that courts of limited jurisdiction may have jurisdiction over claims for declaratory relief. See In re Estate of Doloff, 12 N.Y.S.3d 848, 856–57 (N.Y.S. 2015) (Surrogate Court, a court of limited jurisdiction, had jurisdiction to grant all relief necessary, including ruling ......
  • Best v. Best, S-15-0051
    • United States
    • Wyoming Supreme Court
    • September 30, 2015
    ...have also held that courts of limited jurisdiction may have jurisdiction over claims for declaratory relief. See In re Estate of Doloff, 12 N.Y.S.3d 848, 856-57 (N.Y.S. 2015) (Surrogate Court, a court of limited jurisdiction, had jurisdiction to grant all relief necessary, including ruling ......
  • In re Wiggins
    • United States
    • New York Surrogate Court
    • August 10, 2022
    ... 2022 NY Slip Op 50748(U) In the Matter of the Estate of Robert L. Wiggins a/k/a Robert Louis Wiggins, Proceeding to Recover ... a case. See In re Estate of Dolloff , 49 Misc.3d 440 ... (Sur. Ct. 2015); SCPA § 201(3). Since the parties ... ...
  • In re Trump
    • United States
    • New York Surrogate Court
    • June 25, 2020
    ...of estate assets (see 126 N.Y.S.3d 903 In re Greenwold , 236 A.D.2d 400, 653 N.Y.S.2d 625 ; Matter of Dolloff v. Dolloff , 49 Misc. 3d 440, 12 N.Y.S.3d 848 ). Such a finding can not be made here because this controversy is a dispute regarding private rights and obligations which fall outsid......
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