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Decided on January 29, 2008
Sur Ct, New York County

4050/2006
Kristin Booth Glen, J.
In this disharmonious family, petitioner Elissa Cella seeks limited letters of administration in the estate of her aunt, Mildred Rosasco, for the purpose of commencing and maintaining a proceeding against her son (decedent's grand nephew and preliminary executor of decedent's proffered will), John Cella (Cella), to set aside a February 11, 2002 agreement whereby decedent allegedly transferred to Cella her 20% interest in real property, known as 51 East 10th Street, in the
City, County and State of New York, for less than fair market value [FN1] (see SCPA 702[9]). Petitioner claims decedent lacked capacity to enter into the agreement and, in the alternative, the agreement was procured by "coercion and undue influence [. . .] and fraud." Petitioner is a distributee of decedent's estate and an objectant to the proffered will, dated September 16, 1997,
which leaves decedent's entire estate to Cella.[FN2]
Decedent died June 18, 2006, at age 93, survived by five nieces and nephews (issue of two predeceased siblings). On February 11, 2002, decedent, along with her sisters Lillian Rosasco and
Loretta Martinotti, executed an instrument whereby each of them agreed to transfer to Cella a 20% interest in 51 East 10th Street for $120,000, to be paid in installments over a six year period.[FN3] Petitioner bases her claim on an appraisal of the premises, obtained by Cella as of [*2]June 18, 2006, of $6.55 million. Implicit is petitioner's argument that the value of the real estate did not appreciate more than ten fold in less than four and a half years.
Cella "denies the purported property value as of June 18, 2006 in part because it should be reduced by $1 million to account for a mortgage as of that date." According to Cella, therefore, the value of a 20% interest in the premises, as of June 18, 2006, would be $1.11 million rather than the $1.31 million claimed by petitioner a sum that, nevertheless, exceeds the 2002 contract price by more than nine fold. In addition, Cella "denies that the value of the property in 2006 or 2002 was relevant to the validity of the agreement." Rather than counter the allegation that decedent agreed to transfer her interest in real property for less than fair market value, Cella appears to concede it. Cella's defenses namely, decedent was competent to enter into the February 11, 2002
agreement,[FN4] the doctrine of laches bars the claim, and the claim is frivolous may be raised, should petitioner actually assert her claim, but do not address the question before this court: should the court grant limited letters of administration to a disinherited distributee seeking to recover
property due the estate. [FN5]
Cella asserts petitioner can never be found to have an interest in decedent's estate as none of decedent's prior wills, dated October 12, 1995, August 24, 1990, November 9, 1973, and December 18, 1967, respectively, benefits petitioner. However, should the court deny probate of decedent's proffered and penultimate wills (which benefit Cella), decedent will have died intestate, the residuary beneficiaries under decedent's three earlier wills being siblings who pre-deceased her
without issue.[FN6] In such event, petitioner would benefit from a successful challenge of the 2002 agreement.
A proceeding to vitiate a contract must be commenced within six years (see CPLR 213[2]).[FN7] Therefore, a proceeding to set aside the February 11, 2002 agreement must be [*3]commenced by February 11, 2008, less than one month hence.[FN8] Accordingly, should the
court hold the petition in abeyance, pending a determination of petitioner's interest if any in the estate, her claim could be extinguished.[FN9]
Curiously, neither party's affidavits raise the issue of the statute of limitations. Instead, the
affidavits limn a family mired in hostility over the management and ownership of various interests in real property.
The undisputed facts that decedent, close to 90, pro se, signed an agreement, prepared by Cella's counsel, to transfer an interest in real property to Cella for far less than fair market value render the transfer suspect. Cella, as preliminary executor of a will under which he is sole legatee, cannot or should not assert the claim against himself, individually (see SCPA 702[8]). Should Cella fail to obtain probate of either decedent's proffered will or penultimate will, decedent's distributees would be prejudiced by deferral of an inquiry into the validity of the transfer (cf. Matter of Stoller, 4 Misc 3d 538, 539 [Sur Ct, New York County, 2004]).
Accordingly, Elissa Cella is appointed limited administrator, upon her duly qualifying according to law (see SCPA 702[8] and [9]). In issuing letters of limited administration to petitioner, the court is not adjudicating the merit of her claim (see Matter of Leistner, NYLJ, June 15, 2006 [Sur Ct, Nassau County, Riordan, S.]), but merely protecting it against inaction by the preliminary executor (see Matter of Stoller, 4 Misc 3d 538, 539 [Sur Ct, New York County, 2004, supra]). Furthermore, while EPTL 11-1.1(b)(22) entitles a fiduciary to reasonable counsel fees from the estate, should petitioner, in her capacity as fiduciary, use estate funds "to the disadvantage of any person interested in the estate," she would do so at her own peril (Matter of Stanley, 240 AD2d 268, 270 [1st Dept 1997]). At any rate, once petitioner asserts her claim in a timely fashion, the court can hold the proceeding in abeyance until the beneficial interests in decedent's estate have been established.
Decree signed.
Clerk to notify parties of this decision.
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SURROGATE
Dated:January, 2008
Footnotes
Footnote 1: There is no evidence in the record decedent ever executed a deed transferring her interest in 51 East 10th Street to Cella, or Cella ever made payment under the agreement. At any rate, Cella admits to having treated decedent's interest in 51 East 10th Street as his own, since February 11, 2002, if not earlier.
Footnote 2: Petitioner, along with three other distributees, filed objections to probate on April 16, 2007, on grounds of lack of genuineness, undue execution, lack of capacity, mistake, undue influence, and fraud.
Footnote 3: According to Cella, decedent's brother Walter Rosasco owned a 100% interest in 51 East 10th Street when he died intestate, a New Jersey domiciliary, in 1997: 60% of his interest devolved upon his three sisters; 40% of his interest devolved upon his and decedent's five nieces and nephews.
Lillian Rosasco died November 12, 2002, at age 98. Loretta Martinotti died January 28, 2004, at age 95. Neither Lillian Rosasco nor Lorretta Martinotti was survived by issue.
Footnote 4: The attorney Cella had retained to draft the agreement and supervise its execution decedent and her sisters being pro se has submitted an affidavit as to decedent's competence.
Footnote 5: In Matter of Davidson, (177 Misc 2d 928 [Sur Ct, New York County, 1998]), by contrast, a disinherited distributee was granted limited letters of administration in order to commence a proceeding to set aside decedent's revocable trust, into which the will poured.
Footnote 6: The beneficiaries under the 1990 will are: Lillian Rosasco, Loretta Martinotti, and Walter Rosasco, or the survivor or survivors of them; under the 1973 will: Lillian Rosasco, but if she does not survive decedent, then Walter Rosasco; and under the 1967 will: Walter Rosasco, but if he does not survive decedent, then Lillian Rosasco.
Footnote 7: An action based upon fraud which petitioner has alleged must be commenced within the greater of six years or "two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it" (CPLR 213[8]). While the date on which petitioner learned of the February 11, 2002 agreement is unclear, petitioner appears to concede that, with reasonable diligence, she could have discovered the alleged fraud by December 2003. Accordingly, petitioner's allegation of fraud does not extend the six year limitation period.
Footnote 8: The tolling of the statute of limitations, triggered by the death of decedent (a potential claimant), expired June 18, 2007, one year after her death (see CPLR 210[a]).
Footnote 9: Should petitioner establish decedent was "insane" at the time the cause of action accrued and remained so until her death, the statute of limitations as to petitioner's claim of incapacity only would be tolled for three years from decedent's death (see CPLR 208; cf. Seppala v
Meadowbrook Care Center, Inc., 292 AD2d 368 [2nd Dept 2002]).

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