In this reverse discovery proceeding (SCPA 2105), at issue is the ownership of two closely-held corporations. The surviving spouse alleges that she is the sole owner of the corporations, while the decedent's son in his capacity as executor of the estate alleges that the estate is the owner. The surviving spouse has made a timely demand for a jury trial and the executor now moves the court for an order striking the jury demand, contending that the nature of the proceeding is in equity, for which the spouse has no right to a jury trial. As explained below, the motion is denied.

Counsel for the executor correctly states that the issue to be determined is whether the nature and substance of the relief requested is in law or in equity; if in law, the spouse is entitled to a jury trial, if in equity, she is not (Matter of Garfield, 14 NY2d 251; Matter of Luria, 63 Misc 2d 675, 681). He errs when he argues that the relief sought is equitable in nature and his reliance on Matter of Filipiak (66 Misc 2d 742) is misplaced. In Filipiak, the objectants in an executor's accounting proceeding contended that the transfer from the decedent to the executor of the sum of $15,000 was a loan, not a gift, and should have been reflected in the account as such; they also argued that they were entitled to a jury trial on this objection as it was in the nature of a conversion for which a jury trial is a matter of constitutional right. In denying the objectant's motion for a jury trial, the court held that the objectants were not asserting interference with their own possession of money, but rather were asserting ownership of the possession of money belonging to another, namely, the decedent. Since the relief sought was not predicated upon any interference with their own possession, the court found that the nature of the relief sought was in equity, rather than at law, as conversion is the unauthorized assumption and exercise of right of ownership over goods belonging to another (Matter of Filipiak, 66 Misc 2d 742, 743).

Here, the surviving spouse is alleging exactly what the objectants in Filipiak did not, that is, interference with property which she claims as her own. In the probate petition, the executor identifies the corporations as being assets of the estate. In her petition in this reverse discovery proceeding, the spouse alleges that all of the issued and outstanding shares of the two corporations are owned solely by her. In his answer to the petition, the executor expressly denies that allegation. Ownership of the corporations is clearly in issue. One of the corporations owns real property upon which the executor operates a construction business; and the other corporation's only asset is a yacht which is the possession of the executor. The surviving spouse claims that the property is hers and that the executor is now, in effect, wrongfully exercising [*2]dominion and control over the corporations by exercising dominion and control over the only assets of the two corporations. This is a reverse discovery proceeding in which the relief sought is replevin of the property (SCPA 2105). The surviving spouse is, therefore, entitled to a jury trial (Matter of Garfield, 14 NY2d 251; Matter of Schneier, 74 AD2d 22; SCPA 502[1]; CPLR 4101[2]). The motion to strike the jury demand is denied.

Settle order on five days' notice with five additional days if service is by mail.

Dated: January 8, 2004

JOHN B. RIORDAN

Judge of the

Surrogate's Court