In the Matter of the Estate of Diva Mary Troiano

• Court: New Jersey Superior Court Appellate Division
• Decided: June 4, 2026
• Docket: A-2336-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2336-24

IN THE MATTER OF THE ESTATE OF DIVA MARY TROIANO, a/k/a DIVA TROIANO. _____________________

Submitted May 12, 2026 – Decided June 4, 2026

Before Judges Torregrossa-O'Connor and Rosero.

On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. P-133826-24.

Cooper Levenson, PA, attorneys for appellant Albert Troiano, Jr. (Justin D. Santagata, on the briefs).

Daniel J. Gallagher, attorney for respondent Stephen Troiano.

PER CURIAM

We granted appellant, Albert Troiano, Jr.'s motion for leave to appeal a

Chancery Division order in this probate matter, entering summary judgment in favor of his brother, respondent, Stephen Troiano, 1 and closing the estate of the

parties' mother, decedent, Diva Mary Troiano. The court closed the estate after

determining there were no assets that could be administered to either Albert or

Stephen, the two residuary beneficiaries listed in decedent's will.

On appeal,2 Albert claims that the court improperly granted summary

judgment and failed to state its findings of fact on the record regarding whether

Diva T LLC, a company formed by decedent, was owned by decedent at the time

of her death, and thus an asset of the estate. Albert argues the court improperly

considered a document, provided by Stephen in a supplemental filing,

memorializing decedent's transferring years before her death her entire interest

in Diva T LLC to her granddaughter, Stephanie. We affirm.

I.

Decedent passed away on November 18, 2023. On December 4, 2023,

Stephen applied to probate decedent's will, dated January 5, 2012, naming

Stephen as executor. The will listed Albert and Stephen as residuary

1 For clarity given their shared surname, we refer to Albert, Stephen, and Stephanie Troiano, decedent's granddaughter, by their first names. We intend no disrespect. 2 The parties in this case were permitted to rely on their briefs in support of and in opposition to defendant's motion for leave to appeal as their briefs on the merits in this appeal. A-2336-24 2 beneficiaries, each receiving fifty percent of the residuary estate. The Atlantic

County Surrogate's Court issued Stephen letters testamentary, duly authorizing

Stephen to administer decedent's estate according to the 2012 will.

Thereafter, Albert applied to probate an after-discovered will allegedly

executed by decedent dated October 31, 2018, naming Albert as executor and

Albert's son, Westin, as an alternative executor in the event Albert was unable

to perform his duties. Like the 2012 will, the 2018 will also listed both Albert

and Stephen as residuary beneficiaries, with each receiving fifty percent of the

residuary estate. The parties agree that the only difference between these two

wills is the chosen executor.

In February 2024, before the Chancery Division, Stephen opposed

probating the 2018 will, asserting no assets remained in the estate. The court

admitted the after-discovered will to probate. Noting no distinction between the

2012 and 2018 wills, except as to the executor, the court scheduled a hearing to

further address the question of the estate's assets and the proper executor.

At a hearing the following month, Albert represented he was attempting

to confirm the assets in the estate, which Stephen continued to contend did not

exist. Albert specifically raised issues concerning certain real property (the

property) that passed from the parties' late father to decedent, and argued as

A-2336-24 3 executor of the 2018 will, he would be better able to investigate the assets.

Stephen, as executor of their father's estate, contended the property Albert

questioned indeed passed from their father to decedent. However, he

represented decedent then transferred the deed into Diva T LLC, before

thereafter transferring Diva T LLC and its holdings entirely to Stephanie,

Stephen's daughter, who runs a bar located on the property.

Albert disputed whether the property had ever properly transferred to

decedent or Diva T LLC.3 The court then framed the two issues before it as

what property, if any, was part of the estate and who should be executor of the

estate, and carried the matter for discovery. The court noted the executor

determination would be academic if no assets remained in the estate.

On August 16, 2024, Stephen, still acting as executor of decedent's estate

pursuant to the 2012 will, filed a motion to reform the deed to the property to

correct an error in its recorded metes and bounds, and to close decedent's estate.

Albert opposed, and filed a cross-motion to compel discovery.

The court heard oral argument on all motions on November 13, 2024.

Stephen requested the court reform the deed to the property to reflect the correct

3 The executor issue is not before us on appeal. Albert also subsequently abandoned before the trial court his opposition to reforming the deed or challenging the property transferred from his father's estate. A-2336-24 4 property description. He contended there was no dispute decedent transferred

the property to Diva T LLC, previously co-owned by decedent and Stephanie,

before decedent later transferred her interest in the LLC and its holdings to

Stephanie. Stephen also identified a sum of money in a joint checking account

belonging to decedent and her granddaughter and some "plates" and "jewelry."

Stephen also noted that he paid for decedent's funeral using his own money, and

Albert did not assist in paying the costs.

Albert argued the court should compel Stephen to produce tax returns,

bank statements, and other deeds or documents relevant to decedent's estate. He

at that time opposed reforming the deed, and continued to argue the property

never fully passed from their father's estate to decedent. Albert also sought "the

Diva T LLC records" to determine ownership of the LLC.

On November 19, 2024, the court issued an order requiring Stephen to

provide Albert a list of decedent's personalty; all records, including the deed and

bank statements, relating to the transfer of Diva T LLC; income tax returns for

decedent; deeds and certain property records, and an "informal accounting" of

the estate of decedent. In response, the informal accounting provided by

Stephen reflected the estate included "decedent's clothing and the furniture in

her room," funeral expenses in the amount of $13,644 and burial expenses in the

A-2336-24 5 amount of $1,470, and a joint checking account with Stephanie in the amount of

$5,479.26.

At the hearing on February 25, 2025, Stephen indicated he turned over

discovery as ordered, and represented no material facts remained to dispute the

property was owned by Diva T LLC, which had been transferred entirely to

Stephanie prior to decedent's death. He further argued he established the need

to reform the deed and no dispute existed concerning the scope and nature of the

property.

Albert agreed, having reviewed the discovery, there was no basis to

oppose reformation of the deed. Albert also advised the court Stephen provided

for the first time in his "reply" to the motion a resolution purportedly signed by

decedent transferring her entire interest in the LLC to her granddaughter on

March 23, 2018. Albert did not seek an adjournment or raise any dispute as to

the resolution's authenticity.

The court then made findings of fact. It summarized the parties' dispute

and the record concerning the error in the deed. Based on Albert's

representations, the court acknowledged Albert no longer disputed the error in

the property description and ordered reformation of the deed.

A-2336-24 6 Then addressing Stephen's motion to close the estate, the court found no

assets remained. In light of the resolution Stephen produced memorializing

decedent's transfer of her interest in Diva T LLC to Stephanie prior to decedent's

death, the court inquired whether there remained any dispute as to the absence

of assets in the estate. Neither party raised an issue. Albert indicated only that

he could not represent any jewelry existed in the estate exceeding $20,000 in

value, and Stephen confirmed that most jewelry and china plates were gifted

away by decedent before death.

The court thus found there were no disputed facts and there were no assets

in the estate, and denied Stephen's request for counsel fees. By order dated

February 25, 2025, the court memorialized its decision. Specifically, the court

ordered a reformation of the deed and the closure of decedent's estate.

A-2336-24 7 On appeal, Albert argues the trial court erred in granting summary

judgment4 because it "never ruled on the motion to depose Albert's counsel," 5

"never directly addressed the dispute over Diva T LLC," and based its decision

entirely on a resolution of Diva T LLC that was submitted for the first time "in

reply" by Stephen.

II.

"We review de novo the trial court's grant of summary judgment, applying

the same standard as the trial court." Abboud v. Nat'l Union Fire Ins., 450 N.J.

Super. 400, 406 (App. Div. 2017) (citing Templo Fuente de Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). A court must grant

summary judgment "if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

4 Although Albert's Notice of Appeal also indicates he appeals from the court's November 19, 2024 discovery order, he makes no argument in his brief asserting the court erred in its discovery order or challenging the order in any way. As such, the issue is deemed waived. See Midland Funding, LLC v. Thiel, 446 N.J. Super. 537, 542 n.1 (App. Div. 2016) (when appellant's Notice of Appeal lists issues later "not briefed on appeal," the Appellate Division "considers [the] appeal from those [issues] abandoned . . . [and] waived"). 5 We similarly deem this argument waived as defendant makes only the naked statement in Albert's brief on appeal indicating the trial court failed to consider its motion. See Midland, 446 N.J. Super. at 542 n.1. A-2336-24 8 entitled to a judgment or order as a matter of law." R. 4:46-2(c). "To decide

whether a genuine issue of material fact exists, the trial court must 'draw[] all

legitimate inferences from the facts in favor of the non-moving party.'"

Friedman v. Martinez, 242 N.J. 450, 472 (2020) (alteration in original) (quoting

Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)).

We have reviewed the record and reject Albert's claim the court

improperly granted summary judgment in favor of Stephen and closed the estate.

"It is well-settled that the burden of showing that there are more assets in

an estate than are acknowledged by the executors in their inventory or account

rests upon the exceptants." In re Est. of Perrone, 5 N.J. 514, 521 (1950). These

contentions "must be sustained with reasonable certainty." Ibid. Here, however,

the asset issue was considered as a motion for summary judgment, and we

therefore review it through the lens of whether the record, viewed in the light

most favorable to Albert, presented disputed issues of material fact related to

the ownership of Diva T LLC at the time of decedent's death.

The signed resolution reflected decedent transferred her interest in the

LLC, and thus its holdings including the property, to Stephanie in 2018, roughly

five years prior to decedent's death. Other than Albert's early certification baldly

disputing Stephen's representation that Stephanie owned the LLC, citing only a

A-2336-24 9 lack of documentation provided by Stephen, the record contained no contrary

facts to dispute that decedent's transfer predated her death.

Albert now cites to a portion of a printout of a Status Report for Diva T

LLC, dated November 1, 2024, listing decedent as "agent" and "president."

However, the document does not reflect the ownership of the LLC on that date,

or dispute decedent's transfer of her entire ownership interest to Stephanie in

2018. Further, a certification from James Portock, C.P.A., dated January 27,

2025, attested, "In 2018, [decedent] transferred the remaining ownership

interests to Stephanie wherein Stephanie was at such time 100% owner of Diva

T LLC." Portock certified he filed all relevant tax returns "for the individuals,

the corporation and LLC" reflecting the ownership change. Thus, we are

satisfied the record contained no evidence disputing decedent's 2018 transfer to

Stephanie of decedent's remaining Diva T LLC ownership interest or that the

property was therefore no longer part of the estate in 2023.

As we understand Albert's argument, he also contends Stephen's providing

the resolution in a supplemental filing before the trial court should have either

precluded it from consideration or warranted denial of summary judgment. We

are not persuaded.

A-2336-24 10 The trial court, before entering summary judgment and closing the estate,

posited that the parties now agreed no assets remained in the estate, confirming

"everybody consents to that." In the wake of Stephen's producing the resolution

transferring ownership years before decedent's death, the parties raised no

challenge. Hearing no dispute or application for additional discovery or

supplemental filings or arguments, the court reasonably accepted that the

resolution resolved the question regarding ownership of the LLC, and

accordingly, the property held by it. On this record and in light of the parties'

arguments and positions, we are not convinced the court's failure to state more

detailed reasons regarding the ownership of Diva T LLC was error.

Importantly, the record before us reflects Albert never raised any claim

before the trial court suggesting the resolution was other than what it purported

to be or that it did not prove decedent in fact transferred Diva T LLC to

Stephanie. Although in his brief before us Albert debuts his opinion decedent's

signature on the resolution varies from decedent's signature on an earlier

document, this claim was neither raised nor explored before the trial court and

is thus not before us on appeal. This court need not consider arguments not

presented to the trial court "when an opportunity for such presentation was

A-2336-24 11 available." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting State v.

Robinson, 200 N.J. 1, 20 (2009)).

Further, we are satisfied Albert's claim that Stephen's providing the

resolution in a "reply" somehow should have barred its consideration lacks

merit. The very case Albert relies upon to make this argument undermines it.

In Sholtis v. American Cyanamid Co., 238 N.J. Super. 8 (App. Div. 1989), this

court reversed a trial court's decision to exclude supplemental certifications

regarding asbestos exposure in a strict liability asbestos case, noting courts have

"wide discretion" to allow supplemental evidence to be submitted on summary

judgment motions. Id. at 17. Here, the trial court's November 2024 order

explicitly allowed for supplemental filings. Therefore, we perceive no error in

the court's considering the resolution memorializing decedent's transfer of Diva

T LLC to Stephanie merely because it was supplied by supplemental filing.

To the extent we have not expressly addressed them, any remaining

arguments raised by defendant lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-2336-24 12