Earl Davis's Memorandum of law in support of motion for judgment

1. SURROGATE’S COURT STATE OF NEW YORK COUNTY OF KINGS In the Estate of Elizabeth Haynes Urquhart, TURNOVER PROCEEDING Deceased, File No. 2005-4023/B RESPONDENTS AMERICAN REGIONAL REAL ESTATE PARTNERS INC., CHAI CAPITAL, LLC, AND EARL DAVIS’S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT GREENBERG TRAURIG, LLP Sarah D. Lemon, Esq. Brian Pantaleo, Esq. One Vanderbilt Avenue New York, New York 10017 Tel: (212) 801-9200 lemons@gtlaw.com pantaleob@gtlaw.com Counsel for RespondentsAmerican Regional Real Estate Partners Inc., Chai Capital, LLC, and Earl Davis i

2. TABLE OF CONTENTS PAGE TABLE OF CONTENTS ........................................................................................................... II PRELIMINARY STATEMENT ................................................................................................. 1 FACTS ....................................................................................................................................... 2 THE STANDARD ...................................................................................................................... 4 ARGUMENT .............................................................................................................................. 5 I. THIS TURNOVER ACTION IS TIME BARRED. .......................................................... 5 II. THE COURT DOES NOT HAVE JURISDICTION OVER THIS MATTER, WHICH IS A DISPUTE BETWEEN LIVING PARTIES OVER REAL PROPERTY THAT ALLEGEDLY VESTED WITH ELIZABETH URQUHART’S HEIRS INTESTATE. ............................................................................ 6 III. IV. SCPA § 2103 DOES NOT APPLY TO THIS ACTION TO VOID A DEED. .................. 7 THE AVAILABLE PUBLIC RECORDS DEMONSTRATE THAT THE JUNE 2019 GRANTORS WERE SAVANAH BROWN’S HEIRS. ........................................... 8 CONCLUSION ........................................................................................................................... 9 ii

3. TABLE OF AUTHORITIES Page(s) Cases Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) ............................................................................................................ 4 Matter of Birnbaum, 131 Misc 2d 925 (Sur Ct, Monroe County 1986) ................................................................... 6 Matter of Cagino, NYLJ, Dec. 19. 2017 (Sur Ct, Albany County 2017) ......................................................... 6, 7 Gould v. McBride, 36 A.D.2d 706 (1st Dep’t 1971), aff’d, 29 N.Y.2d 768 (1971) ............................................... 4 GTF Mktg., Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985) ............................................................................................................ 4 Matter of Lainez, 79 A.D.2d 78 (2d Dep’t 1981) ............................................................................................... 6 Mallad Constr. Corp. v. Cnty. Fed. Sav. & Loan Ass’n, 32 N.Y.2d 285 (1973) ............................................................................................................ 4 Matter of Neshewat, 237 A.D.2d 524 (2d Dep’t 1997) ........................................................................................... 5 Matter of Norstar Trust Co., 132 A.D.2d 973 (4th Dep’t 1987) .......................................................................................... 5 In re O’Connell, 98 A.D.3d 673 (2d Dep’t 2012) ............................................................................................. 6 In Matter of Parisi, 59 Misc 3d 1020 (Sur Ct, Queens County 2018) .................................................................... 6 RCA Corp. v. Am. Standards Testing Bureau, Inc., 121 A.D.2d 890 (1st Dep’t 1986)........................................................................................... 4 Will of Quackenbush, 152 Misc.2d 888 (Sur Ct, Jeff. County 1991) ......................................................................... 6 Zuckerman v. City of N.Y., 49 N.Y.2d 557 (1980) ............................................................................................................ 4 Statutes SCPA § 102 ................................................................................................................................ 5 SCPA § 201 ............................................................................................................................ 6, 7 SCPA § 1902(3) ...................................................................................................................... 6, 7 iii

4. SCPA § 2103 .................................................................................................................. 1, 5, 7, 8 SCPA § 2103(a) .......................................................................................................................... 7 SCPA § 2103(a)-(c) .................................................................................................................... 7 SCPA § 2103(b) .......................................................................................................................... 7 Other Authorities CPLR 210 ................................................................................................................................... 5 CPLR 210(c) ............................................................................................................................... 5 CPLR 3212(b) ............................................................................................................................. 4 iv

5. PRELIMINARY STATEMENT Before the Court can address Karen Urquhart’s (“Karen Urquhart,” “Karen,” or “Petitioner”) Amended Verified Petition’s1 merits, or lack thereof, this motion for summary judgment raises three procedural issues: The limitations period for a claim accruing between a decedent’s death, but before the Court grants letters of administration, commences no later than three years after the decedent’s death. Decedent Elizabeth Urquhart died in 2005. Can her estate’s administrator file a timely petition for a turnover proceeding in 2021? This Court does not have jurisdiction over disputes between living parties. Decedent died in 2005, and her real property rights vested intestate with her living heirs. Living petitioner, Karen Urquhart, now claims that those rights include an 100% interest in a Macon Street property. The petition further asserts that a 2019 deed to living respondents, conveying a partial interest in the same property, is void. Does the Court have jurisdiction to settle this dispute between living parties? The Surrogate’s Court Procedure Act creates a mechanism to turnover estate property that is in a respondent’s possession or control, and to obtain information to help discover estate property. The Amended Verified Petition does not claim that respondents possess property. It also fails to allege that respondents are withholding information. Instead, it seeks to void a duly executed and recorded deed for real property. Does the petition set forth an actionable claim under the statute? The answer to each question is: “No.” So the Petition fails because: (1) it is time barred; (2) the Court lacks jurisdiction; and (3) it fails to state a claim under SCPA § 2103. These three procedural deficiencies are each an independent ground for dismissal. And respondents American Regional Real Estate Partners Inc., Chai Capital, LLC, and Earl Davis (collectively, “Respondents”) are entitled to Summary Judgment. But even if the Petition could survive the above procedural hurdles, its challenges to respondent’s June 2019 deed are meritless. Respondents conducted an extensive investigation to 1 The “Amended Verified Petition” or the “Petition” refers to the Amended Verified Petition of Karen Urquhart sworn to on November 10, 2021, which is annexed to the Affirmation of Brian Pantaleo dated January 13, 2022 (the “Pantaleo Aff.”) as Exhibit E. 1

6. determine that the deed’s grantors were indeed Savanah Brown’s heirs. And the documents attached to the objection – public birth records, death certificates, and marriage licenses – establish this kinship. This evidence resolves all factual issues when compared to the hearsay handwritten family tree attached to an attorney affirmation – that claims Savanah Brown’s parents are different than the ones on her death certificate. (It also misspells, “Isenhour,” Savanah’s maiden name). Because the Court cannot consider these self-serving hearsay claims. As a result, the Petition sets forth no factual or legal basis for the broad relief it seeks. And thus, the Court should grant this motion for summary judgment, and dismiss the Amended Verified Petition in its entirety. FACTS On or about December 29, 1950, Elizabeth Urquhart and Savanah Brown purchased the real property located at 15 Macon Street, Brooklyn, New York (the “Property”) as tenants in common. Aughtry Aff. Ex. D.2 They recorded the deed memorializing this transaction in the public record. Id. Elizabeth Urquhart died on August 5, 2005. Ver. Obj. Ex. A. Elizabeth’s granddaughter, Karen Urquhart, first petitioned the Court for Letters of Administration – ten years later – on August 11, 2015. Pantaleo Aff. Ex. A. According to this verified petition, Karen claimed that her mother, Judy Urquhart, filed a probate petition in September 2005, but later withdrew it in September 2010. Id. Karen’s petition further identified the estimated gross value of decedent’s personal property as $0.00. Id. She described the real property passing “through intestacy” as “1/2 the interest in the real property located at 15 Macon Street, Brooklyn, NY 11216.” Id. Karen also filed an Affidavit of Debt with the Court. Id. at Ex. B. In this affidavit, she separately affirmed that the value of all personal property receivable by 2 “Aughtry Aff.” refers to the Attorney Affirmation of Dewette C. Aughtry dated October 10, 2021, which is annexed to the Pantaleo Aff. as Exhibit E. 2

7. the estate in the next 18 months was $0.00. Id. And that she had made a diligent search but could not identify any debts or claims against the estate – including unpaid funeral or medical bills. Id. Karen would file amended petitions for letters in August 2016 and August 2018. Id. at C & D. In both amended petitions, Karen repeatedly verified that the real property passing “through intestacy” was a “1/2 the interest in the real property located at 15 Macon Street, Brooklyn, NY 11216.” Id. On June 1, 2019, Savanah Brown’s surviving heirs conveyed their interest in the Property to American Regional Real Estate Partners Inc., Earl Davis, and Chai Capital, LLC. Aughtry Aff. Ex. C. Savanah Brown (born Savanah Isenhour) died in 1955. Ver. Obj. Ex. A. Respondent was able to trace Savanah’s family tree to her great grandfather, Charles Isenhour, by reviewing the marital records of her mother and grandmother – which identified their parents. Id. at B & C. Charles’s son, and Savanah’s great uncle, was John Isenhour – a link respondents established with John’s death certificate. Id. at D. John’s daughter was Johnsie Gertrude Isenhour. Id. at E. Her death certificate indicates that she died in 1973. Id. She would have been Savanah’s cousin in 1955. Johnsie Gertrude married John King. Id. at F.They had a daughter – Johnnie Mae Elizabeth King. Id. The grantors in the June 2019 deed are her children – Joanna E. Robbins-Sumner and Everett Hacket Jr. as “Surviving heirs/Distributees Johnnie Mae Elizabeth Robbins a/k/a Johnnie Mae E King.” See Aughtry Aff. Ex. C. According to the North Carolina Birth Index, Joanna and Everett are Johnnie Mae Elizabeth’s children. Ver. Obj. Exs. G & H. In or about November 2021, Karen filed the instant Amended Verified Petition and Order to Show Cause seeking various forms of relief – including an order declaring Elizabeth Savanah’s “only heir,” a declaratory judgment voiding the deed, and sanctions against the grantees and their 3

8. attorneys. Pantaleo Aff., Ex. E. Respondents American Regional Real Estate Partners Inc., Earl Davis, and Chai Capital now move for summary judgment – respectfully requesting the Court dismiss the Amended Verified Petition in its entirety. THE STANDARD Under CPLR § 3212(b), a motion for summary judgment must be granted if, upon all the papers and proofs submitted, the movant’s cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing judgment in movant’s favor. Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562 (1980). A movant must make a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence demonstrating the absence of a material issue of fact. See, e.g., Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). The party opposing a motion for summary judgment has the burden of coming forward with evidentiary proof in admissible form sufficient to establish that factual issues exist which require a trial of the action. GTF Mktg., Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 968 (1985). Averments merely stating conclusions of fact or law are insufficient to defeat a motion for summary judgment. Mallad Constr. Corp. v. Cnty. Fed. Sav. & Loan Ass’n, 32 N.Y.2d 285, 290 (1973). Similarly, mere denials cannot preclude summary judgment. Gould v. McBride, 36 A.D.2d 706, 706-07 (1st Dep’t 1971), aff’d, 29 N.Y.2d 768 (1971). To defeat a motion for summary judgment, the opposing party must demonstrate a real defense requiring a trial. RCA Corp. v. Am. Standards Testing Bureau, Inc., 121 A.D.2d 890, 891 (1st Dep’t 1986). Here, the Court should grant summary judgment in the Respondents’ favor. This action is time barred, and the Court lacks jurisdiction to adjudicate a dispute between living parties concerning real property that vested with decedent’s heirs in 2005. Further, the public records establish that Respondents’ deed is valid. And Petitioner’s hearsay claims otherwise, do not create 4

9. a factual issue to preclude dismissal. As a result, the Court should grant summary judgment and dismiss the petition in its entirety. ARGUMENT I. THIS TURNOVER ACTION IS TIME BARRED. This turnover action is untimely because Elizabeth Urquhart died in 2005. The statute of limitations in a discovery or turnover proceeding is governed by the CPLR. See SCPA § 102 (“The CPLR and other laws applicable to practice and procedure apply in the surrogate’s court except where other procedure is provided by this act.”). A proceeding “commenced pursuant to SCPA § 2103 has been likened to a replevin action, which has a statute of limitations of three years.” Matter of Norstar Trust Co., 132 A.D.2d 973 (4th Dep’t 1987); see also Matter of Neshewat, 237 A.D.2d 524, 525 (2d Dep’t 1997) (“Generally, the Statute of Limitations applicable to a discovery proceeding is the three-year Statute of Limitations under CPLR 214 (3) for replevin and conversion actions”). But CPLR § 210(c) must also apply when a cause of action accrues after death and before grant of letters administration. So, in an action to recover damages for taking estate property, the limitations period must “be computed for the time the letters are issued or three years after death, whichever event first occurs.” (emphasis added). CPLR § 210(c). Here, Elizabeth died in 2005. But due to the administrator’s delay, letters did not issue until 2021 – sixteen years later. In enacting CPLR § 210, the Legislature anticipated such a scenario. The statute computes the limitations period from three years after death – August 5, 2008. And thus, whether this SCPA § 2103 action sounds in replevin (three years), fraud (six years), or quiet title (ten years), the limitation period expired before Karen filed her 2021 Amended Verified Petition. As a result, the Court should grant summary judgment, and dismiss the Amended Verified Petition. 5

10. II. THE COURT DOES NOT HAVE JURISDICTION OVER THIS MATTER, WHICH IS A DISPUTE BETWEEN LIVING PARTIES OVER REAL PROPERTY THAT ALLEGEDLY VESTED WITH ELIZABETH URQUHART’S HEIRS INTESTATE. The Court lacks jurisdiction over this matter – involving a dispute between the Respondents and Elizabeth’s living heirs concerning vested real property. The “Surrogate’s Court is a court of limited subject matter jurisdiction and possesses only those powers conferred upon it by statute.” In re O’Connell, 98 A.D.3d 673, 674 (2d Dep’t 2012). As a result, jurisdiction may be broad when a proceeding involves administrating an estate. Id. But the Court’s jurisdiction, under SCPA § 201, does not extend to “independent matters involving controversies between living persons.” Id. quoting Matter of Lainez, 79 A.D.2d 78, 80 (2d Dep’t 1981). When the dispute involves real property, SCPA § 1902(3) factors in analyzing whether the action is between living parties, or whether it involves estate administration. This statute “recognizes the general rule that real property passes outside the estate.” Will of Quackenbush, 152 Misc.2d 888, 893 (Sur Ct, Jeff. County 1991). Likewise, surrogate’s courts have consistently refused to invoke jurisdiction in real property disputes where some (or all) of the property is not in the estate. See In Matter of Parisi, 59 Misc 3d 1020 (Sur Ct, Queens County 2018) (dismissing a partition matter for lack of jurisdiction when only 16.66% was in the estate); Matter of Birnbaum, 131 Misc 2d 925, 929 (Sur Ct, Monroe County 1986) (“a general holding that the Surrogate’s Court has the blanket authority to adjudicate a partition action in every instance where a decedent’s estate is a cotenant-in-common in real property is not supported by the case law and expansion of this court’s jurisdiction in this regard is unsustainable.”); Matter of Cagino, NYLJ, Dec. 19. 2017 at 41 (Sur Ct, Albany County 2017) (dismissing an action when only half of the property was in the estate, while the other half was owned outright by the four children as living parties). So it 6

11. follows that a surrogate’s court will not have jurisdiction in a real property dispute where living heirs claim 100% property ownership against living parties outside the estate. See Id. Here, this is a real property dispute between living parties. Elizabeth died in 2005. In multiple affidavits and verified petitions, Karen represented to the Court that no outstanding debts or claims exist against the estate. Under SCPA § 1902(3), therefore, Elizabeth’s ownership rights in the Macon Street property – whether it be 50% as Karen verified in her earlier petitions, or 100% as she now claims – vested with Elizabeth’s heirs upon her death. According to Karen’s own petition, these heirs were John Urquhart (who died in 2010), Judy Urquhart, and Karen. So Karen and Judy are living parties alleging that they have vested property rights. Respondents are also all living parties and companies. This action seeks to void their duly executed and recorded deed. As a result, this is a dispute between living parties concerning real property. And this Court does not have jurisdiction, under SCPA § 201, to resolve it. So the Court should grant summary judgment, and dismiss the Amended Verified Petition. III. SCPA § 2103 DOES NOT APPLY TO THIS ACTION TO VOID A DEED. Karen does not state a claim for relief under SCPA § 2103 because her petition does not allege that respondents physically possess estate property, or that they are withholding knowledge concerning additional estate property. Under SCPA § 2103, an administrator may petition the surrogate court to turnover property allegedly belonging to the estate, or order a hearing to discover information about property that a respondent withholds from the estate. See SCPA § 2103 (a)- (c). Specifically, the petition must allege that property is: (a) “in the possession or control of a person who withholds it from him;” or (b) “within the knowledge or information of a person who refuses to impart knowledge or information he may have concerning it or to disclose any other fact which will aid the petitioner in making discovery of the property.” Id. (a) & (b). 7

12. Here, the Amended Verified Petition fails to allege that respondents physically possess or control property. Respondents do not occupy the Macon Street property. They are not collecting rent from the property. And they are not denying Elizabeth’s living heirs access. Similarly, the petition fails to allege that respondents are refusing to disclose information or facts “which will aid the petitioner in making discovery of the property.” Respondent’s deed is public record. Karen does not allege the estate may own additional properties that respondents are trying to hide. Rather than pleading these required elements, the petition claims that respondents’ duly executed and recorded deed is “fraudulent” and void. Simply put, SCPA § 2103 does not provide a mechanism to void a deed. As a result, the Court should grant summary judgment, and dismiss the Amended Verified Petition. IV. THE AVAILABLE PUBLIC RECORDS DEMONSTRATE THAT THE JUNE 2019 GRANTORS WERE SAVANAH BROWN’S HEIRS. The June 2019 deed memorializes a valid land sale transaction between respondents and Savanah Brown’s heirs. Savanah Brown (born Savanah Isenhour) died in 1955. Ver. Obj. Ex. A. According to her death certificate, Savanah’s parents were Frank Carter and Nettie Isenhour. Id. Nettie’s marital records indicate that Martha Isenhour was her mother. Id. at Ex. B. According to Martha’s marital records, Charles Isenhour was Martha’s father. Id. at Ex. C. Charles also had, a son, John Isenhour. Id. at Ex. D. So Martha (Savanah’s grandmother) and John were brother and sister, because John’s death certificate also identifies Charles as his father. Id. This made John Savanah’s great uncle. John’s daughter Johnsie Gertrude Isenhour died in 1973. Id. at Ex. E. She would have been Savanah’s cousin. Her death certificate identifies John as her father. Id. Johnsie Gertrude married John King. Id. at F.They had a daughter – Johnnie Mae Elizabeth King. Id. at F. 8

13. The grantors of the June 2019 deed are Joanna E. Robbins-Sumner and Everett Hackett Jr. as surviving heirs of Johnnie Mae Elizabeth King (married name: Robbins). Aughtry Aff. Ex. C. According to their North Carolina Birth Indexes, Joanna and Everett are Johnnie Mae Elizabeth’s children. Ver. Obj. Exs. G & H. So, relying upon the above records, respondents purchased their interest in the Macon Street property, which would have been obtained from their kinship with Savanah. These public records are far more reliable than a handwritten family tree attached to an attorney affirmation. See Aughtry Aff. Ex. B.3 Notably, this family tree mis-identifies Savanah’s own parents – contradicting her death certificate. See Ver. Obj. Ex. A. And it misspells her maiden name as “Eisehour.” Alleging that respondents engaged in fraud or illegal activity is even more irresponsible since Karen knowsthat Elizabeth only owned 50% of the property. In fact, she represented to this Court three times – under penalty of perjury – “1/2 the interest in the real property located at 15 Macon Street, Brooklyn, NY 11216” was decedent’s only real property. Now, however, she claims this half interest is instead a 100% ownership. As a result, the allegations that petition levies against respondents are not only untenable – but also false. So the Court should grant this motion for summary judgment, and dismiss the Amended Verified Petition. CONCLUSION For all of the foregoing reasons, the Court should dismiss Karen Urquhart’s Amended Verified Petition in its entirety, grant summary judgment in respondents’ favor, and grant such other and further relief as this Court deems just and proper. 3 It is unclear why this family tree, which Karen presumably created, was not attached to her petition – and instead included in an attorney’s affirmation. 9

14. Dated: January 13, 2022 New York, New York Respectfully Submitted, GREENBERG TRAURIG, LLP By: /s/ Brian Pantaleo Sarah D. Lemon, Esq. Brian Pantaleo, Esq. One Vanderbilt Avenue New York, New York 10017 Tel: (212) 801-9200 lemons@gtlaw.com pantaleob@gtlaw.com Counsel for RespondentsAmerican Regional Real Estate Partners Inc., Chai Capital, LLC, and Earl Davis ACTIVE 62278368v1 10