In the Matter of Menitskiy, 2009 NY Slip Op 33102(U) (N.Y. Surr. Ct. 12/24/2009)
| Decision Date | 24 December 2009 |
| Docket Number | Dec. No. 754.,Dec. No. 862.,No. 351064.,Dec. No. 861.,351064. |
| Citation | 2009 NY Slip Op 33102 |
| Parties | In the Matter of the Probate Proceeding, Will of VALERY MENITSKIY, a/k/a VALERY EVGENYEVICH MENITSKIY, Deceased. In the Matter of the Application of Yulia Malakhova, Petitioner, v. To Stay a Special Joint Meeting of Directors and Shareholders and for the Issuance of Limited Letters of Administration in the Estate of VALERY MENITSKIY, Deceased. |
| Court | New York Surrogate Court |
Before the court in connection with this estate are a miscellaneous proceeding and a contested probate proceeding. In the probate proceeding, the preliminary executors, Martin R. Weinberg and Irina Andriasova-Sushko, have moved for an order dismissing the objections filed by Yulia Malakhova. In the miscellaneous proceeding, Yulia Malakhova, moved, by order to show cause returnable December 11, 2008, for an order staying the special joint meeting of directors and shareholders of MJV 1922 Corporation ("MJV" or "the Corporation"), restraining the sale of any property owned by the Corporation and requesting the issuance of limited letters of administration to her. In the miscellaneous proceeding, the preliminary executors have also now moved for permission to sell the property located at 4 Peachtree Lane, Roslyn, New York. Yulia has also filed a cross-motion seeking various relief in connection with the Corporation and distribution under the decedent's purported will.
The decedent died on January 13, 2008 in Moscow, Russia, leaving a purported will dated August 17, 2007. The purported will nominates the decedent's attorney, Martin R. Weinberg, and Irina Andriasova-Suskho, as executors. Preliminary letters testamentary issued to them by decree of this court on April 25, 2008. The purported will bequeaths the decedent's 75% interest in the Corporation to Yulia. Yulia allegedly owns the other 25% interest in the Corporation. Mr. Weinberg claims that he is the president of the Corporation and has been so since its formation in 2005. At the time of the decedent's death, the Corporation owned real property located at 4 Peachtree Lane, Roslyn, New York and 20 Hickory Drive, Old Brookville, New York and two automobiles. The purported will also includes a $300,000.00 cash bequest to Ms. Sushko.
Yulia is one of three women who were allegedly married to the decedent at the time of his death on January 13, 2008. Yulia claims she married the decedent on December 26, 2007, after his divorce from Olga Menitskaya became finalized on September 20, 2007. Olga has filed suit in Russia attempting to invalidate the marriage between Yulia and the decedent on the grounds that the September 20, 2007 divorce was invalid. The parties disagree over the status of the Russian proceeding. The preliminary executors contend that the Russian courts have determined that the divorce was not valid and that the determination is final. Yulia disputes this characterization of the Russian proceeding. Both Yulia and Olga have filed a Notice of Right of Election in the probate proceeding.
Yulia has filed objections to the will, limited to the appointment of the fiduciaries. A guardian ad litem was appointed for the decedent's child, Mikhail, who is eight years old. Mikhail lives with Yulia at the Peachtree Lane property. The guardian ad litem has filed his report wherein he has stated that he will not be filing objections to the purported will pursuant to a stipulation of settlement. Pursuant to the terms of that stipulation, Ms. Sushko has agreed to assign to Mikhail one-half of whatever she ultimately receives under the will. The court has authorized the guardian ad litem to sign the stipulation on behalf of his ward.
After oral argument, on December 15, 2008, the return date of Yulia's order to show cause in the miscellaneous proceeding, the court lifted the temporary restraining order to allow the Corporation to sell one of the two vehicles owned by the Corporation and to list the real property located at 20 Hickory Drive, Old Brookville, New York with a real estate agent for sale. The court also directed that court approval would be required if a buyer was located and a contract of sale was to be entered into.
Thereafter, a number of conferences were held in an attempt to resolve the issues raised by Yulia concerning the Corporation. A stipulation of settlement was drafted, but not executed. As a result, the preliminary executors, by order to show cause returnable on March 11, 2009, asked for the court's permission to accept an offer on the Hickory Drive property in the amount of $3.6 million. After oral argument, the court granted the preliminary executors permission to enter into a contract of sale.
The preliminary executors have now filed (I) a motion for an order authorizing the Corporation to sell the property located at 4 Peachtree Lane, Roslyn, New York and (ii) a motion dismissing Yulia's objections and admitting the purported will to probate. According to the preliminary executors, the Peachtree property is currently occupied by Yulia and no rent is being paid. A demand has been made for Yulia to pay the real estate taxes. The preliminary executors argue that it is necessary to sell the Peachtree property to pay the administration expenses of the estate. In addition, the preliminary executors allege that the books and records of the Corporation reveal that the decedent loaned $7.1 million to the Corporation during his lifetime. The preliminary executors contend that it is necessary for the Corporation to sell its assets in order to repay the $7.1 million loan, which is an asset of the decedent's estate. The preliminary executors further contend that since the Corporation earns no income and expenses have and will continue to accrue, it is in the best interests of all the shareholders to sell the Peachtree property.
Yulia opposes the motion to sell the Peachtree property challenging the validity of the alleged $7.1 million loan and the reasons asserted by the preliminary executors as requiring a sale of the Peachtree Lane property. With respect to the motion to dismiss her objections and admit the will to probate, Yulia consents to the admission of the will to probate, but objects to the issuance of permanent letters to Mr. Weinberg and Ms. Sushko. In addition, Yulia has crossmoved for an order (I) consenting to the dispositive provisions of the purported will; (ii) directing the preliminary executors to deliver to Yulia her specific bequest of the shares of the Corporation; (iii) directing the preliminary executors to turn over to Yulia's attorneys all of the assets of MJV and all corporate, business and legal documents and records of the Corporation; (iv) removing Martin Weinberg as a "self-appointed" director of MJV and as "self-appointed" president, vice-president, secretary and treasurer of the Corporation; (v) ordering limited and expedited disclosure in the form of examinations before trial of the preliminary executors with the concomitant document production; (vi) compelling the preliminary executors to comply with a Notice of Discovery and Inspection dated February 7, 2009; and (vii) revoking preliminary letters.
In support of the relief requested, Yulia argues essentially that the preliminary executors have only one goal which is "to convert the assets of MJV into cash for the estate, leaving no monies and no assets" for Yulia and Mikhail. She claims that this it the exact opposite of what the decedent intended.
Yulia further claims that the decedent was the president of the Corporation and she was the vice-president. She disputes Mr. Weinberg's allegation that he is the president. Yulia annexes documents relating to the purchase of the real estate that list the decedent as the president of the Corporation. Yulia further argues that Mr. Weinberg's sworn representations that he is the sole officer and director of the Corporation are contradicted by the documentary evidence that shows that the decedent was president and Yulia was vice-president. Despite this claim, however, Yulia also annexes copies of the certificates issuing shares of the Corporation to her and the decedent. The certificates were, in fact, signed by Mr. Weinberg as president. She further claims that she and the decedent together negotiated and purchased all of MJV's assets, including signing contracts and opening bank accounts. Yulia alleges that she had signatory authority and signed all of the Corporation's checks. According to Yulia, Mr. Weinberg has misappropriated the Corporation's bank account by improperly changing title to the Corporation's bank account, the address on the account and the signatory cards. Yulia claims that Mr. Weinberg transferred in excess of $61,000.00 from the old account on which she was a signatory to the new account opened by him on behalf of the Corporation and refuses to provide her with documentation she has requested concerning this account.
Yulia also argues that there is a manifest conflict of interest given the preliminary executors fiduciary duties and Mr. Weinberg's role in the Corporation. As to Mr. Weinberg, Yulia claims he is using his purported authority with the Corporation to sell the Corporation's monies and deliver them to the estate. According to Yulia's attorneys, Weinberg has
As to Irina Andriasova-Sushko, Yulia claims her conflict is also manifest. She is a legatee of a $300,000.00 bequest under the purported will. Thus, Yulia argues that, to the extent the assets of the Corporation are liquidated, Irina's bequest will be funded. Yulia also claims that Ms. Sushko was a real estate broker on the Peachtree property and failed to disclose this to the decedent and...
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