ESTATE OF PAUL S. VIRGINIA, MTR. OF

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [1325] CA 14-00950 PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. IN THE MATTER OF THE ESTATE OF PAUL S. VIRGINIA, DECEASED. ---------------------------------------- MEMORANDUM AND ORDER WESTERN NEW YORK CHECK SERVICES LLC, PETITIONER-APPELLANT, AND PAULETTE GORDON, PETITIONER; THE ESTATE OF PAUL S. VIRGINIA, THOMAS VIRGINIA, JR., AND MARIANA G. VIRGINIA, RESPONDENTS-RESPONDENTS. HARTER SECREST & EMERY LLP, BUFFALO (RAYMOND L. FINK OF COUNSEL), FOR PETITIONER-APPELLANT. JASON R. DIPASQUALE, BUFFALO, FOR RESPONDENTS-RESPONDENTS. Appeal from an order and decree of the Surrogate’s Court, Erie County (Barbara Howe, S.), entered March 4, 2014. The order and decree dismissed without prejudice the petition to, inter alia, transfer to petitioners the membership interest of decedent in petitioner Western New York Check Services LLC. It is hereby ORDERED that the order and decree so appealed from is unanimously affirmed without costs. Memorandum: Petitioners commenced this proceeding seeking, inter alia, an order pursuant to SCPA 2105 directing respondents to transfer to petitioners decedent’s membership interest in petitioner Western New York Check Services LLC. Surrogate’s Court properly dismissed the petition on the ground that petitioners failed to demonstrate that they are “unquestionably and unconditionally entitled to [the] immediate” transfer of decedent’s membership interest (Matter of Mittleman, 35 Misc 2d 848, 848 ; see Matter of Yaremo, 2013 NY Slip Op 30717[U] , *3 [Sur Ct, Nassau County 2013]). Inasmuch as petitioners are not entitled to relief under SCPA 2105, there was no need for the Surrogate to consider the contentions concerning the requirements of Banking Law article 9-A. Entered: January 2, 2015 Frances E. Cafarell Clerk of the Court