In re the Estate of Petrocelli

Appellate Division of the Supreme Court of New York

In re the Estate of Petrocelli

307 A.D.2d 358, 763 N.Y.S.2d 73, 2003 N.Y. App. Div. LEXIS 8373

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 28, 2003

StatusPublished

This text of 307 A.D.2d 358 (In re the Estate of Petrocelli) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Petrocelli, 307 A.D.2d 358, 763 N.Y.S.2d 73, 2003 N.Y. App. Div. LEXIS 8373 (N.Y. Ct. App. 2003).

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Opinion

In a proceeding to settle the coexecutors’ amended intermediate account, the appeal is from an order of the Surrogate’s Court, Queens County (Nahman, S.), dated January 4, 2002, which granted the motion of the coexecutors to vacate the objectant’s demand for a jury trial.

Ordered that the order is affirmed, without costs or disbursements.

The relevant facts underlying this appeal are set forth in the decision on the companion appeal (see Matter of Petrocelli, 307 AD2d 358 [2003] [decided herewith]).

Contrary to the objectant’s contention, the Surrogate’s Court correctly granted the motion of the coexecutors to strike his jury demand. The objectant argues that certain of his objections allege conversion and/or seek replevin, and thus, the proceeding is one in law, entitling him to a jury trial. However, the right to the relief sought is not predicated upon legal title in the objectant. Rather, it is predicated upon the alleged ownership of assets by the decedent at the time of her death. Therefore, the nature of the proceeding is in equity, not law, and the objectant’s jury demand was properly stricken (see SCPA 502 [1]; Cobblah v Katende, 275 AD2d 637 [2000]; cf. Matter of Sackler, 222 AD2d 9 [1996]). S. Miller, J.P., Gold-stein, Friedmann and Cozier, JJ., concur.

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In a proceeding to settle the coexecutors’ amended intermediate account, the appeal is from an order of the Surrogate’s Court, Queens County (Nahman, S.), dated January 4, 2002, which granted the motion of the coexecutors to vacate the objectant’s demand for a jury trial.

Ordered that the order is affirmed, without costs or disbursements.

The relevant facts underlying this appeal are set forth in the decision on the companion appeal (see Matter of Petrocelli, 307 AD2d 358 [2003] [decided herewith]).

Contrary to the objectant’s contention, the Surrogate’s Court correctly granted the motion of the coexecutors to strike his jury demand. The objectant argues that certain of his objections allege conversion and/or seek replevin, and thus, the proceeding is one in law, entitling him to a jury trial. However, the right to the relief sought is not predicated upon legal title in the objectant. Rather, it is predicated upon the alleged ownership of assets by the decedent at the time of her death. Therefore, the nature of the proceeding is in equity, not law, and the objectant’s jury demand was properly stricken (see SCPA 502 [1]; Cobblah v Katende, 275 AD2d 637 [2000]; cf. Matter of Sackler, 222 AD2d 9 [1996]). S. Miller, J.P., Gold-stein, Friedmann and Cozier, JJ., concur.

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Bluebook (online)

307 A.D.2d 358, 763 N.Y.S.2d 73, 2003 N.Y. App. Div. LEXIS 8373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-petrocelli-nyappdiv-2003.

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