This is a discovery proceeding (SCPA 2103) in which the estate seeks to establish the existence of a leasehold interest in commercial real property and to enforce its provisions. Before the court is an application by petitioner for a preliminary injunction.

Milton Diamondstein died on May 2, 2004 survived by three children, Barbara Ostrick, Joanne Goldstein and Jerome Diamondstein (respondent). A petition has been filed for probate of an instrument dated July 2, 2002. Preliminary letters testamentary issued to Michael Goldstein (petitioner) on September 3, 2004. The instrument provides that Barbara Ostrick and Joanne Goldstein each receive 25% of the residuary estate in trust. The balance is bequeathed to the decedent's grandchildren in various percentages.

Decedent was the sole shareholder of Queens Motor Inn Corporation which owns and operates the Queens Motor Inn in Woodside, New York. The shares of Queens Motor Inn Corporation are part of the residuary estate. The decedent had also been the owner of the real property on which the motel is situated but in 1997 the decedent sold the real property for 1.15 million dollars to Queemo Corporation. Jerome Diamondstein is the President and sole owner of Queemo Corporation. He is also the Vice President of Queens Motor Inn Corporation and receives a salary in addition to a share in the profits pursuant to a written agreement dated June 26, 1995. Jerome Diamondstein alleges that there is not now and never has been a lease between the owner of the real property and Queens Motor Inn Corporation, rendering the motel corporation's occupancy of the premises a month-to-month tenancy. In this proceeding, the petitioner seeks to establish that, to the contrary, there is a lease.

In August, 2004, Jerome Diamondstein as President of Queemo Corporation, executed a thirty day notice of termination of the tenancy which was addressed to Queens Motor Inn Corporation.

This discovery proceeding was commenced on September 24, 2004 by petition and order to show cause. Petitioner seeks a preliminary injunction prohibiting the respondent from evicting the Queens Motor Inn Corporation and for other relief. The order to show cause, which is still in effect, restrains the respondent from commencing a judicial proceeding to evict Queens Motor Inn Corporation. Despite its corporate veneer, this is a dispute between Jerome Diamondstein [*2]and the beneficiaries of the instrument offered for probate. Petitioner alleges that if Jerome is successful in evicting Queens Motor Inn Corporation from the premises, the value of the corporation's shares to the residuary beneficiaries may be diminished severely, if not completely. Jerome would then have both title to the realty and control of the motel facility.

A hearing was held on October 4, 2004 to determine whether petitioner is entitled to a preliminary injunction (CPLR 6313) and the matter was submitted for decision. At the hearing, petitioner's attorney argued that the course of conduct between the corporations suggests the possibility of a lease, e.g., the Queens Motor Inn Corporation paid the real estate taxes which is a usual provision of a net lease.

To be entitled to a preliminary injunction the petitioner must establish (1) the likelihood of success on the merits (2) irreparable injury absent granting the preliminary injunction and (3) a balancing of the equities in the movant's favor (Pearlgreen Corp. v Yau Chi Chu, 8 AD3d 460 [2004]; Ying Fung Moy v Hohi Umeki, ___AD3d____, 781 NYS2d 684 [2004]).

On an application for a preliminary injunction standing is a component of likelihood of success on the merits (Pelligrini v Rockland Community Action Counsel, 190 AD2d 881 [1993]). Here, petitioner's standing is dependent upon the existence of a lease.

In an effort to establish a lease, petitioner seeks a deposition of Jerome Diamondstein and production of Queemo Corporation's records. Under these circumstances, petitioner should be given an opportunity to depose Jerome Diamondstein prior to a decision on the application for a preliminary injunction to determine whether there is a lease. Petitioner is also entitled to production of the books and records of Queemo Corporation beginning with the date that Queens Motor Inn Corporation occupied the premises. Such discovery "will better able the court to judge the parties' interests and respective chances for success on the merits" (see, Edudata Corporation v Scientific Computers, Inc., 599 F Supp 1084 [D. Minn. 1984], aff'd in part rev'd on other grds 746 F2d 429 [8th Cir. 1985]; Commissariat A L'Energic Atomique v Dell Computer Corp., 2004 WL 406351 [D. Del. 2004]).

As there is a temporary restraining order in effect, the deposition must proceed expeditiously. Accordingly, this matter will appear on the court's calendar on Monday, October 25, 2004 at 10:00 a.m. for a scheduling conference by telephone.

The temporary restraining order will remain in effect until a decision is rendered on the application for a preliminary injunction.

This decision constitutes an order of the court.

Dated: October 21, 2004

JOHN B. RIORDAN

Judge of the

Surrogate's Court