Cite as: Will of Irwin Berlin, 2012-2355/B, NYLJ 1202637962096, at *1 (Surr., NY, Decided January 7, 2013)


Surrogate Rita Mella

Decided: January 7, 2013

The following papers were considered in deciding the motion to dismiss this Turnover proceeding:

Papers… Numbered

Verified Petition to Identify, Turnover and Compel Delivery of Personal Property… 1

Affidavit and Affirmation to Amend Petition to Identify, Turnover, and Compel Delivery of Personal Property… 2, 3

Notice of Motion, Amended Notice of Motion, Motion to Dismiss, and Affidavit in Support of Motion to Dismiss… 4, 5, 6, 7





In this miscellaneous proceeding, Petitioner, Gregory Gutierrez, seeks delivery, pursuant to SCPA §2105, of his personal property that he maintains was in decedent's home at the time of his death. Respondent, Robin Berlin, decedent's sister and the executor of his will, has moved to dismiss this reverse discovery petition on several grounds. As discussed below, her motion is granted in part and denied in part.

Decedent died on March 30, 2012, and his will was admitted to probate by decree of this court dated May 15, 2013. Decedent's will left certain bequests to Petitioner, charitable organizations, and friends, his apartment to Respondent, and his residuary estate to several nieces




and nephews. Petitioner alleges that he had many personal items in decedent's apartment at the time of his death and seeks a "walk-through" of the apartment as well as the turnover of certain enumerated items. In lieu of filing an Answer, Respondent has moved, pursuant to CPLR §3211, to dismiss the Petition on the grounds that: (1) there is no statutory authority that allows for the "walk-through" of the apartment; (2) it fails to plead an action for conversion; (3) the statute of limitations for any conversion claim has run; (4) the Petition fails to state a claim under SCPA §2105; (5) Petitioner abandoned the property; (6) Petitioner gifted the property to decedent; and (7) Respondent is not in possession of all the items alleged to belong to Petitioner.

Conversion, Walk-Through Request, and Stating a Claim Under SCPA §2105

With respect to Respondent's claim that the Petition fails to state a cause of action for conversion, the motion is denied. The Petitioner does not allege conversion as a basis for reverse discovery, nor does a fair reading of the Petition lead the court to conclude that conversion is the underlying claim. For the same reason, Respondent's motion to dismiss on the ground that the cause of action for conversion is barred by the Statute of Limitations is denied.

However, Respondent's motion to dismiss the Petition based on failure to state a cause of action for reverse discovery under SCPA §2105 is granted with respect to that portion of the Petition that seeks a walk-through of the decedent's apartment to identify property that might belong to the Petitioner. This form of relief is not available under any statutory or decisional law, nor is it a discovery device to which Petitioner is entitled under Article 31 of the CPLR. Furthermore, Petitioner has failed to offer any authority that would provide a basis for this relief.

Relatedly, the motion to dismiss the part of the Petition that seeks turnover of assets not




specified in the Petition but that Petitioner alleges he could identify during a walk-through of the apartment is granted. A reverse turnover petition must identify specific property believed to be in possession of the fiduciary and must indicate the Petitioner's basis for his or her right to ownership (SCPA §2105). For that reason, the motion to dismiss the balance of the Petition, which seeks the turnover of a list of specific items, is denied.

Abandonment or Gifting

As to Respondent's claims of abandonment of the property or gift as a basis for dismissal, her motion is denied. Nothing in the Petition reveals any such action on Petitioner's part. Indeed, the Petition alleges Petitioner to be the owner of the property in question, and on a motion under CPLR 3211 such allegations must be deemed to be true (Sanders v. Winship, 57 NY2d 391, 394 [1982]; Cron v. Hargro Fabrics, Inc., 91 NY2d 362, 366[1998]).

Existence and Possession of Property Sought by Petitioner

Respondent's argument that the Petition should be dismissed because the property does not exist or because the items the Petitioner seeks to recover have no monetary value is without merit. Petitioner is entitled to conduct discovery pursuant to Article 31 of the CPLR to gather information to substantiate his claim.

Finally, Respondent's request for attorneys fees is denied. There is no basis on the record for the court to conclude that Petitioner is engaging in vexatious litigation or that his claim is frivolous.

Therefore, as discussed above, Respondent's motion to dismiss is granted to the extent




that the portions of the Petition that seek to conduct a walk-through of decedent's apartment and the delivery of items not specified in the Petition are dismissed. The balance of Respondent's motion is denied. Any verified Answer to the Petition must be filed by January 24, 2014.

This decision constitutes the order of the court.

Dated: January 7, 2014