        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

393
CA 12-01383
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


DAVID W. CASTOR, JR., PLAINTIFF-RESPONDENT,
AND JANICE POISSANT, PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

LYNN J. PULASKI, PAUL W. PULASKI,
DEFENDANTS-APPELLANTS,
STACEY R. CASTOR, ET AL., DEFENDANTS.


COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DANIEL ROSE OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

MEGGESTO, CROSSETT & VALERINO, LLP, SYRACUSE (JAMES A. MEGGESTO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (Anthony J. Paris, J.), entered December 14,
2011. The order and judgment, among other things, awarded plaintiff
David W. Castor, Jr., compensatory damages, punitive damages and
attorneys’ fees against defendants Lynn J. Pulaski and Paul W.
Pulaski.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by granting in its entirety the
motion to dismiss the complaint for lack of standing, the first and
third through sixth ordering paragraphs are vacated, and the complaint
is dismissed against defendants Lynn J. Pulaski and Paul W. Pulaski
without prejudice in accordance with the following Memorandum: David
W. Castor, Jr. (plaintiff) commenced this fraud action seeking damages
from, inter alia, Lynn J. Pulaski (Lynn) and Paul W. Pulaski (Paul)
(collectively, defendants) in connection with the probate of a
fraudulent will, purported to be the will of plaintiff’s father, David
Castor, Sr. (decedent), which was offered for probate by defendant
Stacey R. Castor (Castor), decedent’s wife. Castor was convicted of,
inter alia, the murder of decedent in connection with decedent’s death
in August 2005 of antifreeze poisoning, and offering a false
instrument for filing in connection with the purported will (People v
Castor, 99 AD3d 1177, lv denied 20 NY3d 1010). Decedent’s death was
treated as a suicide until Castor’s arrest approximately two years
later. Plaintiff is decedent’s sole heir. It is undisputed that
defendants agreed to Castor’s request that they witness decedent’s
signature on the will six weeks after his death and that they
thereafter each signed an attestation affidavit, falsely swearing that
he/she was present when decedent executed the will, that decedent
                                 -2-                           393
                                                         CA 12-01383

declared the document to be his will and that he/she witnessed
decedent’s signature. Castor was issued letters of administration
c.t.a. in June 2006 and filed an accounting in April 2007, valuing the
estate at $159,048.50. Castor was the sole beneficiary under the
purported will. Although plaintiff filed objections to the probate of
the will because he suspected Castor may have been responsible for his
father’s death, he testified that he withdrew those objections because
he relied on defendants’ attestation affidavits. At the inquest on
damages against Castor and the nonjury fraud trial against defendants,
the Public Administrator testified that the value of the estate was
approximately $45,000. Supreme Court awarded damages to plaintiff in
the amount of $127,118.65 and punitive damages in the amount of
$250,000 with joint and several liability between defendants and
Castor.

     We agree with defendants that the estate representative is
charged with the duty of recovering property of the estate, and that
plaintiff, as decedent’s sole heir, has no independent cause of
action, either in his own right or the right of the estate, to
maintain an action for recovery of the property of the estate, absent
extraordinary circumstances (see McQuaide v Perot, 223 NY 75, 79-80;
Gaentner v Benkovich, 18 AD3d 424, 426). Extraordinary circumstances
include collusion of the personal representative with others or an
“unreasonable refusal” of the personal representative of the estate to
commence an action (McQuaide, 223 NY at 80). Inasmuch as the
extraordinary circumstances must relate directly to the actions of the
personal representative of the estate, we conclude that the court
erred in determining that the “unique and novel circumstances” of this
case, i.e., “homicide, possible forgery, perjury, false statements,
and possible conflicts of interest,” constitute the requisite
extraordinary circumstances. Indeed, we note that the Public
Administrator testified that he was not asked to commence the fraud
action (cf. id. at 80-81), and there is no allegation that he was
involved in the alleged fraud (cf. Inman v Inman, 97 AD2d 864, 865).
We therefore conclude that the court erred in denying defendants’
motion to dismiss the complaint against them on the ground that
plaintiff lacked standing to commence the action. We therefore grant
defendants’ motion and dismiss the complaint against them without
prejudice to the commencement of a new action by an appropriate party
within six months, in accordance with CPLR 205 (a).

     In light of our determination, we do not address defendants’
remaining contentions.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
