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Matter of Kresge (2007 NY Slip Op 51553(U))
[*1]


Decided on August 15, 2007
Sur Ct, Bronx County

337-A/1999
Max D. Leifer, P.C., (Ira H. Zuckerman, Esq., of Counsel) for Max D. Leifer, P.C., plaintiff
Epstein, Becker & Green, P.C., (Michael Liberman, Esq., of Counsel) for Harvey Kerrich, defendant-administrator
Lee L. Holzman, J.
This is an application by the administrator to transfer to this court a proceeding pending in the Civil Court, Bronx County (Index. No. 006145/07), in which the plaintiff, a law firm that represented a former co-administrator, is suing to recover legal fees. The administrator, who is a defendant in both his fiduciary and individual capacities, filed a counterclaim in the civil court seeking to have the plaintiff disgorge fees previously received in the matter.
The administrator maintains that the issues in the civil court action are among the issues that will be raised in an accounting proceeding which will be filed imminently and that the surrogate's
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court not only has jurisdiction to determine the issues but special expertise to fix legal fees for services rendered to co-administrators in their administration of the estate.
The plaintiff objects to the transfer on the following grounds: (1) a similar motion is currently sub judice in the civil court and the administrator only made this application when the civil court judge indicated that she might deny the application; (2) the transfer application is a delaying tactic which should not be countenanced by the court, especially since the administrator contemplates consolidation with an accounting proceeding which has yet to be filed; and (3) the court does not have subject matter jurisdiction over the claims against the administrator in his individual capacity.
The plaintiff's reliance upon the stayed civil court motion seeking the same relief is misplaced. Had the administrator waited until the civil court judge denied the motion based upon her query during oral argument whether the civil court lacked the authority to transfer for trial the civil court action to the surrogate's court, the plaintiff might then argue that the administrator was being dilatory by not immediately seeking relief in this court upon learning that it had commenced the motion in the wrong court.
The plaintiff's contention that this court lacks authority to transfer the matter from civil court is without merit. SCPA 209(3) and 501(1)(a) specifically authorize the transfer of cases from civil court to surrogate's court which "affect or relate to the administration of an estate." The court also does not find compelling the plaintiff's argument that the court, in its discretion, should deny the motion because the administrator is seeking to delay the determination of its claim by transferring the matter to this court so that it can be consolidated with a complex accounting proceeding. Consolidation has not been specifically requested in the instant motion notwithstanding that the administrator had requested in the transfer motion made in the civil court that the civil court action be consolidated with an accounting proceeding. In any event, the court is not inclined to direct consolidation, which might result in delay, even if the administrator should now file an accounting proceeding in this court and, thereafter, expeditiously obtain jurisdiction over all necessary parties in that proceeding. [*2]
The argument that this court lacks subject matter jurisdiction is also without merit since the summons indicates that the cause of action against the administrator in his individual capacity is based on the breach of a stipulation filed with this court on June 15, 2000. As any of the alleged services for which the plaintiff seeks payment must clearly affect or relate to the administration of this estate and would be the proper subject of an SCPA 2110 proceeding, this court is the appropriate forum for this matter (SCPA 209[3] and SCPA 501[1][a]). Finally, the fact that the
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plaintiff might seek to disqualify the administrator's attorney under the advocate-witness rule is not a basis to deny the transfer motion because there is no reason to believe that one forum is better than the other to decide the disqualification issue.Accordingly, the motion is granted. However, there is no reason why the transfer should result in a delay in conducting a trial. The order to be settled herein shall direct that all counsel attend a pretrial conference on a regular calendar date that they agree upon. In the event that they are unable to agree upon a date, the court will fix the same.
Settle order.

SURROGATE
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