ESTATE OF RENATA FORTI, Deceased (3926/11) — In this proceeding, decedent's granddaughter seeks appointment as administrator of her grandmother's estate. Petitioner alleges that respondent, decedent's daughter, is wrongfully withholding property of decedent, who was a nondomiciliary of this state. Incident to her application of letters, petitioner asks the court to continue restraints previously imposed on respondent, which prohibited her from disposing of estate property pending determination of a separate turnover claim. Petitioner also moves for an order confirming that such a restraint was previously imposed and for leave to supplement her pleading.

The relevant facts are as follows. Decedent died intestate on October 19, 2008 while domiciled in Italy. She is survived by her daughter, respondent; a son who has renounced his interest in her estate; and granddaughter, the child of a predeceased son, who is petitioner herein.

Petitioner specifically alleges that, both prior to and after decedent's death, respondent removed decedent's property valued at approximately $15 million from Italy to New York. Respondent denies the claim, and argues that the court lacks jurisdiction over decedent's estate. Respondent is incorrect. SCPA §206 (1) gives the court jurisdiction over a nondomiciliary as follows:

"The surrogate's court of any county has jurisdiction over the estate of any non-domiciliary decedent who leaves property in the state..."

The court cannot confirm, as petitioner requests, that a temporary injunction had previously been imposed upon respondent, simply because the law prohibits such relief under the present circumstances. First, the petition itself did not seek such relief; instead it asked only for an ex parte injunction (i.e., a temporary restraining order) under the initial order to show cause. Second, even if petitioner had stated the proper relief, her request would have been unavailing, since the petition was filed by a person who did not then have standing to seek relief on behalf of the estate. Third, since the allegations upon which any restraint would be based are sharply contested, petitioner would not have been able to show a probability of success, which is among the prerequisites for a preliminary injunction (see Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862 [1990]; Castia, L.P. v. Maplewood Equity Partners (Offshore), Ltd., 43 AD3d 260 [1st Dept 2007]).

The petition for letters of administration is granted. The application to supplement the petition is denied as moot. Letters of administration shall be issued to petitioner upon her duly qualifying according to law. For the reasons stated above, that part of petitioner's motion that seeks confirmation that a preliminary injunction has been granted is denied.

This decision constitutes the order of the court.

January 15, 2013