Rolnick v. Rolnick

• Decision Date: 11 June 1962
• Citation: 230 N.Y.S.2d 789,35 Misc.2d 456
• Parties: Albert ROLNICK, Estelle Sandhaus and Eileen Greenspan, Plaintiffs, v. Jacob ROLNICK, Adelphi Holding Corp., Adelphi Management Corp., Livingston Securities, Inc., Mellon Trading Corp., Victor Holding Corp. and Berbar Securities, Inc., Defendants.
• Court: New York Supreme Court

Page 789

230 N.Y.S.2d 789

35 Misc.2d 456

Albert ROLNICK, Estelle Sandhaus and Eileen Greenspan, Plaintiffs, v. Jacob ROLNICK, Adelphi Holding Corp., Adelphi Management Corp., Livingston Securities, Inc., Mellon Trading Corp., Victor Holding Corp. and Berbar Securities, Inc., Defendants.

Supreme Court, Special Term, Queens County, Part I.

June 11, 1962.

Robinson, Silverman, Pearce & Aronsohn, New York City, for plaintiffs, David H. Shapiro, New York City, of counsel.

Joseph J. Schwartz, Brooklyn, for defendants.

HAROLD J. CRAWFORD, Justice.

In an action to impress a constructive trust upon the stock of the defendant corporations, the plaintiffs move for an injunction pendente lite restraining and enjoining the individual defendant from transferring or encumbrancing any of the stock of the defendant corporations or the properties owned by the said corporations and further move for the appointment of a receiver to take custody and preserve all of the assets of the defendant corporations.

It is alleged that the plaintiffs and the individual defendant are the children and heirs at law of one Nathan Rolnick, deceased; that the corporate defendants are all domestic corporations owning and operating various real properties located in the City of New York with an aggregate value of approximately $1,500,000; that the decedent was the owner of all of the issued and outstanding stock of the defendant corporations; that a short time before the death of the decedent, the individual defendant, by means of false and fraudulent representations, caused the decedent to execute blank stock assignments and to endorse blank stock certificates in the defendant corporations and caused the decedent to deliver these assignments and certificates to the individual defendant to be held in trust for the benefit of the decedent; that the individual defendant fraudulently and without authority caused his name to be inserted in the said stock certificates and assignment forms and that the individual defendant did the aforesaid acts with the fraudulent intent of depriving the decedent and his heirs at law and next of kin of their lawful interest in the corporate defendants.

The individual defendant has filed a verified petition in the Surrogate's Court of Kings County to probate a purported will allegedly executed by the decedent in which the individual defendant is named as executor of the decedent's estate. The said defendant stated in the petition that the decedent left personal property having a value of only $11,430 and no real property. The plaintiffs herein are contesting the probate of the alleged will in the Surrogate's Court. The defendants oppose the instant motion on the ground that the plaintiffs have no capacity to sue and that, in any event, the injunction should be denied since there is no allegation of intention to transfer the stock or alter the status quo and the said defendant has no intention of transferring the stock or altering the status quo 'unless it becomes necessary to protect their interests against my brother's interference by visits to buildings, collection of rents, acts of intimidation and violence .' The defendants oppose the application for the appointment of a receiver on the ground that the application is not made in the judicial district wherein the defendant corporations have their principal offices and that notice has not been given to the Attorney General. The defendants further contend that the defendant corporations are not being mismanaged and are not in danger of being irreparably damaged.

Ordinarily, a distributee of a decedent's estate has no standing to recover in his own right personal property allegedly transferred by fraud from the decedent during the decedent's lifetime. He may sue, however, where the representative of the estate refuses to bring suit after due demand. Where, as in the case...