Hersh v. Hersh (In re Hersh)

• Decision Date: 13 October 2021
• Docket Number: 2018–00059,File No. 4035E/07
• Citation: 198 A.D.3d 763,156 N.Y.S.3d 251
• Parties: In the MATTER OF George HERSH, deceased. Esther Rachel Hersh, respondent; v. Mark Hersh, et al., appellants.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 763

156 N.Y.S.3d 251

In the MATTER OF George HERSH, deceased.Esther Rachel Hersh, respondent;

v.Mark Hersh, et al., appellants.

2018–00059

File No. 4035E/07

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 30, 2021

October 13, 2021

Gusrae Kaplan Nusbaum PLLC, New York, N.Y. (Ryan J. Whalen of counsel), for appellants.

T. Kevin Murtha & Associates, P.C., Westbury, N.Y. (William Bird III of counsel), for respondent.

HECTOR D. LASALLE. P.J., LEONARD B. AUSTIN, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

In a probate proceeding in which Esther Rachel Hersh, as executor of the estate of George Hersh, petitioned, inter alia, to disclose and recover certain assets alleged to be part of the decedent's estate, Mark Hersh, GM Canmar Residence Corp., 611 West 112th Street Realty Corp., and 611 Colonial, Inc., appeal from an order of the Surrogate's Court, Queens County (Peter J. Kelly, S.), dated October 25, 2017. The order, insofar as appealed from, (1) denied their motion for leave to renew that branch of their prior motion which was for summary judgment dismissing the fraud cause of action, which had been denied in an order of the same court dated June 27, 2013, and (2), upon granting that branch of the petitioner's cross motion which was for leave to renew, in effect, vacated the determination in an order of the same court dated October 1, 2012, denying the petitioner's prior motion for summary judgment on the cause of action for the return of $266,900 contained in certain bank accounts jointly owned by Mark Hersh and the estate of George Hersh, thereupon granted the petitioner's prior motion, and, in effect, severed that cause of action.

ORDERED that the appeal from so much of the order dated October 25, 2017, as denied the motion of Mark Hersh, GM Canmar Residence Corp., 611 West 112th Street Realty Corp., and 611 Colonial, Inc., for leave to renew that branch of their prior motion which was for summary judgment dismissing the fraud cause of action is dismissed; and it is further,

ORDERED that the order dated October 25, 2017, is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the petitioner payable by the appellants.

The appeal from so much of the order dated October 25, 2017, as denied the motion of Mark Hersh, GM Canmar Residence Corp., 611 West 112th Street Realty Corp., and 611 Colonial, Inc., for leave to renew that branch of their prior motion which was for summary judgment dismissing the fraud cause of action must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree in this proceeding ( Matter of Hersh, 198 A.D.3d 766,156 N.Y.S.3d 243 [Appellate Division Docket No. 2019–01182 ; decided herewith]; see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

George Hersh (hereinafter George) died on July 24, 2007. His widow, the petitioner, Esther Rachel Hersh, as executor of his estate (hereinafter the estate), commenced this proceeding, inter alia, to disclose and recover certain assets which allegedly belonged to the estate (hereinafter the discovery proceeding). The discovery proceeding was commenced against, among others, their son, Mark Hersh (hereinafter Mark), GM Canmar Residence Corp., 611 West 112th Street Realty Corp., and 611 Colonial, Inc. (hereinafter collectively the respondent entities; hereinafter together with Mark, the respondents). At the time of George's death, the respondent entities were co-owned by George and Mark in connection with the family's real estate business. In addition to seeking the return of certain property allegedly belonging to the estate, the amended petition also sought, inter alia, ownership interests in the respondent entities based on allegations that Mark had perpetrated a fraud against the estate and mismanaged the respondent entities. By order dated June 27, 2013, the Surrogate's Court denied the respondents' pre-answer motion for summary judgment dismissing the amended petition. Subsequently, the respondents answered the amended petition and asserted six counterclaims against the estate, sounding in breach of contract and unjust enrichment. Thereafter, the respondents cross-moved for leave to renew that branch of their prior motion which was for summary judgment dismissing the fraud cause of action, and that cross motion was denied in an order dated June 29, 2015.

Following the petitioner's deposition, the respondents again moved for leave to renew that branch of their prior motion which was for summary judgment dismissing the fraud cause of action, which had been denied in the June 27, 2013 order. The petitioner cross-moved, inter alia, for leave to renew her prior summary judgment motion, and upon renewal, inter alia, for summary judgment on the...