Kilmer v. Moseman , 3 N.Y.S.3d 147 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 518903
________________________________
RAYMOND C. KILMER et al.,
Respondents,
v MEMORANDUM AND ORDER
SHANNON MOSEMAN et al.,
Defendants,
and
ARTHUR KILMER HOMESTEAD LOG
AND STONE, INC.,
Appellant.
________________________________
Calendar Date: November 19, 2014
Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.
__________
Tatiana Neroni, Delhi, for appellant.
Hinman, Howard & Katell, LLP, Binghamton (Michael Keenan of
counsel), for respondents.
__________
Garry, J.
Appeal from an order of the Supreme Court (Dowd, J.),
entered June 17, 2013 in Delaware County, which, among other
things, denied a motion by defendant Arthur Kilmer Homestead Log
and Stone, Inc. to, among other things, disqualify the assigned
Supreme Court Justice.
Arthur Kilmer Sr. owned certain parcels of real property
until his death in 1978. In his will, he devised a joint life
estate in property on East River Road in the Town of Walton,
Delaware County (hereinafter East River) to two of his sons,
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defendant Roger A. Kilmer and Kenneth Kilmer. The will further
directed that after the deaths of both Roger Kilmer and Kenneth
Kilmer, a 50% interest in East River would be granted to the
distributees of each. A third son, Roy Kilmer, was granted a
life estate in property on Houck Mountain in Walton (hereinafter
Houck Mountain). Upon Roy Kilmer's death, Houck Mountain was to
be devised "to [Arthur Kilmer's] other children or their
distributees per stirpes and not per capita." Thereafter, in
2004, Kenneth Kilmer died intestate and, as he outlived his
parents and died childless and single, "the issue of [his]
parents, by representation," will inherit a one-half interest in
East River upon Roger Kilmer's death (EPTL 4-1.1 [a] [5]). In
2005, Roy Kilmer passed away without any surviving children, and
Roger Kilmer serves as administrator of his estate. Another of
Arthur Kilmer's sons, William C. Kilmer (hereinafter decedent),
had both a contingent remainder interest in East River and an
ownership interest in Houck Mountain. Plaintiffs Raymond C.
Kilmer, Timothy W. Kilmer and Judith M. Beardslee (hereinafter
collectively referred to as plaintiffs) were decedent's children
and served as his attorneys-in-fact.
Plaintiffs and decedent commenced this action and asserted
numerous causes of action related to trespass and the improper
removal of timber and stone from Houck Mountain and East River.
Of particular relevance here is defendant Arthur Kilmer Homestead
Log and Stone, Inc. (hereinafter Homestead), which was formed in
2006 and tasked with managing the quarrying and logging
activities at Houck Mountain. Homestead was created at the
suggestion of former attorney Frederick Neroni, who was
purportedly its president and was tasked with collecting the
proceeds of the quarrying and logging operations. Plaintiffs
seek damages for the alleged trespass, as well as an accounting
to determine what happened to approximately $200,000 that
allegedly vanished in Neroni's care.
In October 2011, Homestead moved for various forms of
relief, including the dismissal of claims against it regarding
Houck Mountain for failure to state a cause of action and summary
judgment dismissing the complaint regarding East River. Decedent
passed away on November 6, 2011. Without notifying Supreme Court
of that fact or seeking to substitute decedent's estate as a
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party, plaintiffs submitted opposition to Homestead's motion and
cross-moved for, among other things, a court-ordered deposition
of Neroni. In a December 2011 order, Supreme Court (Lambert, J.)
denied Homestead's motion and granted plaintiffs' cross motion.
Plaintiffs then moved to, among other things, add the
coexecutors of decedent's estate, Timothy W. Kilmer and Patricia
Cieluszak, as party plaintiffs and sought an order directing
Neroni to appear for a court-supervised deposition. Homestead
responded by moving to: disqualify Acting Supreme Court Justice
Lambert from presiding over the action; disqualify the law firm
representing Roger Kilmer and Paulette Kilmer; sanction various
individuals, including counsel for plaintiffs; and for dismissal
of the claims against Homestead as they relate to East River.
Shortly after that motion was filed, Supreme Court Justice Dowd
was assigned to hear and determine the matters in this action.
Homestead then moved to disqualify Justice Dowd and again sought
sanctions against counsel for plaintiffs. Supreme Court granted
plaintiffs' motion in part, ordering the addition of coexecutors
of decedent's estate nunc pro tunc and directing Neroni to appear
for a deposition, and granted that part of the motion by
Homestead seeking to disqualify counsel for Roger Kilmer and
Paulette Kilmer. Homestead now appeals, and we affirm.
Homestead initially contends that Supreme Court was not
entitled to rule on the various motions of the parties made in
2011 because decedent had died and his estate had not yet been
made a party. "Ordinarily the death of a party results in a stay
of the proceedings and, absent substitution of a proper legal
representative, Supreme Court's [2011 order] would be void . . ."
(Matter of Giaquinto v Commissioner of the N.Y. State Dept. of
Health, 91 AD3d 1224, 1225 n 1 [2012], lv denied 20 NY3d 861
[2013] [citations omitted]; see CPLR 1015, 1021; Thibodeau v
Martin, 119 AD3d 1015, 1015 n 1 [2014]).1 The personal
1
Homestead filed a notice of appeal from the 2011 order,
but it does not appear that the appeal was perfected. We assume
here, without deciding, that Homestead's current challenge
constitutes one to Supreme Court's "competence to entertain [the
2011 motions rather than] its power to render a judgment on the
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representative of decedent's estate would be the appropriate
party to substitute, however, and one of the coexecutors of his
estate is Timothy W. Kilmer (see McDonough v Bonnie Heights
Realty Corp., 249 AD2d 520, 521 [1998]). Moreover, while
decedent's death revoked the power of attorney he had granted to
plaintiffs, all of them inherited shares of his estate and were
motivated to protect its interests (cf. Wisdom v Wisdom, 111 AD2d
13, 14-15 [1985]). Plaintiffs had "a clear identity of interest"
with the estate and "decedent's unique interests [were] not
jeopardized in the absence of a personal representative" and
thus, under these circumstances, Supreme Court was free to act
prior to the formal substitution of the estate as a party
plaintiff (Nieves v 331 E. 109th St. Corp., 112 AD2d 59, 60
[1985], amended 112 AD2d 825 [1985]; see McDonough v Bonnie
Heights Realty Corp., 249 AD2d at 521; cf. Matter of Sills v
Fleet Natl. Bank, 81 AD3d 1422, 1423-1424 [2011]).
Homestead repeatedly asserts that Justice Dowd erred in
refusing to recuse himself in this matter, pointing to the fact
that Ellen Coccoma, who has served as counsel for plaintiffs, is
the wife of the Deputy Chief Administrative Judge for Courts
Outside New York City. Homestead specifically argues that the
Deputy Chief Administrative Judge controls the assignments given
to retired Supreme Court Justices serving as Judicial Hearing
Officers and could thus conceivably cause difficulties for
Justice Dowd following his retirement if he sanctioned or
otherwise ruled against Ellen Coccoma in this action (see
Judiciary Law §§ 850 [1]; 851, 852; 22 NYCRR 81.1). We do not
agree that this remote, speculative, "possible or contingent"
financial interest warrants the disqualification of Justice Dowd
(People v Whitridge, 144 App Div 493, 498 [1911]; see Langdon v
Town of Webster, 270 AD2d 896, 896 [2000], lv denied 95 NY2d 766
[2000]).
To the extent that Homestead's arguments regarding
dismissal of the complaint with regard to East River are properly
merits" that may appropriately be asserted upon this appeal
(Lacks v Lacks, 41 NY2d 71, 75 [1976]; see Editorial Photocolor
Archives v Granger Collection, 61 NY2d 517, 523 [1984]).
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before us, Supreme Court correctly rejected them. Homestead
asserts, among other things, that decedent's interest in East
River was extinguished upon his death and that the claims
regarding that property should be dismissed (see CPLR 1015 [a]).
Arthur Kilmer's will provided that Kenneth Kilmer's "distributees
. . . living at the time of the termination of the life estates"
would inherit a one-half interest in East River, meaning that
decedent's estate has no interest in that property. Given that
"[a] distributee is a person entitled to take or share in the
property of a decedent under the statutes governing descent and
distribution," however, plaintiffs do have a contingent interest
in East River (EPTL 1-2.5; see EPTL 1-2.16, 4-1.1 [a] [5]). They
are therefore entitled to assert claims relating to waste by the
life tenant and his agents, including Homestead, and seek an
accounting for their actions at East River (see RPAPL 1501 [1];
SCPA 103 [30]; 2201; Matter of Gaffers, 254 App Div 448, 451-452
[1938]).
We have examined the remaining claims of Homestead,
including that Supreme Court abused its discretion in failing to
sanction counsel for plaintiffs for her purported concealment of
decedent's death, and that Supreme Court improperly directed that
Neroni's deposition occur at the Delaware County Courthouse, and
find them to be wholly lacking in merit.
Lahtinen, J.P., Rose and Devine, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court