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Pollansky v. Pollansky

Superior Court of Connecticut, Judicial District of Hartford, Hartford

May 23, 2017




          Cesar A. Noble, J.

         The protracted and bitter dispute between mother and son over the sale of 1901 Storrs Road, Mansfield, Connecticut (property), comes before the court on the trial de novo of the probate application for approval of the sale of the property (application) by the mother, Anna Poliansky (administrator), as administrator of the estate of her deceased husband, Andrew Poliansky, 1 father of the plaintiff/son, Steven Poliansky. After careful consideration of the testimony and all the exhibits, the application for sale is approved and the order of the probate Court affirmed, because, as explained below, it is in the best interests of the parties in interest.

         Andrew Poliansky died in July of 2010. Poliansky v. Poliansky, 162 Conn.App. 635, 538, 133 A.3d 167 (2016). The plaintiffs complaint alleges, and the defendant's answer

         Anna Poliansky also appears individually. The plaintiffs sisters, Joyce Chimbole and Judy Richard, also are parties to this action. Anna Pollansky, Chimboleand Richard are referred, to /Collectively as the defendants.

         Admits2, that Anna Poliansky is the administrator of the Estate of Andrew Poliansky, and that on February 29, 2016, she filed a petition (application) for approval of a contract for the sale of the property with a proposed sale price of $169, 900. The evidence produced at trial demonstrates that a hearing on the application was held on April 25, 2016, before the Probate Court, Chadwick, J, who approved the application and mailed its order to the parties on May 9, 2016. The plaintiff commenced a timely appeal by service on the defendants of the writ of summons and complaint on June 7, 2016.3Broadly construed, the complaint constitutes an appeal from the decision of the Probate Court. The defendants, through counsel, conceded orally that this is what they understood the nature of the claim to be. The trial of the appeal occurred on May 18, 2017. The court received evidence from the administrator; Dawn Abro, a realtor; Frank Chimbóle, the administrator's son-in-law; Steven Poliansky and his wife, Darby Poliansky.

         " [T]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader.... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it." (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn.App. 470, 476, 929 A.2d 362, 367 (2007), cert, denied, 285 Conn. 913, 943 A.2d 474 (2008).

         General Statutes § 45a-186 governs appeals from probate and provides in relevant part that " any person aggrieved by any order... of a Probate Court... may, not later than forty-five days after the mailing of any order... appeal therefrom to the Superior Court." § 46a-186 (a).

         " The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo.... Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the [P]robate [C]ourt, the [S]uperior [C]ourt should exercise the same power of judgment which the [P]robate [C]ourt possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the [P]robate [C]ourt." (Internal quotation marks omitted.) In re: Probate Appeal of Cadle Co., 152 Conn.App. 427, 439-40, 100 A.3d 30 (2014). The determination of whether to approve the application of an administrator to sell property owned by the estate is governed by General Statutes § 45a-164 (a), which requires the court to consider the best interests of the parties in interest.4 Such a determination involves contemplation of whether the sale is necessary or advantageous, including whether the proposed sales price is fair.

         Section 45a-164 provides in pertinent part: " Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, temporary administrator, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after such notice as the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of such person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such temporary administrator, administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application." § 45a-164 (a).

          Marshall v. Kleinman, 186 Conn. 67, 70, 438 A.2d 1199 (1982). The parties are not in dispute as to whether the sale is necessary, but rather to whom the property should be sold and whether the sales price of $169, 900 represents the likely highest price.

         The court makes the following findings of fact. The property is a nine room house consisting of 1988 square feet situated on 1.4 acres. It was listed for sale as a four bedroom house. The plaintiff testified the house was previously used for lease, generally to University of Connecticut students who occupied up to eight of the rooms as bedrooms, commanding up to two thousand dollars in monthly rent. There was significant damage to the house present in 2014, however, the time it was first listed for sale with Abro. The administrator provided testimony, which the court credits, that the estate did not have the funds to undertake all of the repair that was required. A written contract for the sale of the property was executed on or about October 24, 2014 for the amount of $158, 000. This sale was approved by the Probate Court. Simultaneously, the plaintiffs twenty-year-old daughter offered to purchase the property for the same amount although she was not then pre-qualified for a mortgage. Her offer was rejected by the Probate Court. The plaintiff appealed from the approval of the sale by the Probate Court and ultimately the approved contract was withdrawn by the purchaser because of a delay in closing. On or about May 6, 2015 the property was again placed under contract, this time for $155, 000, which sale was also approved by the Probate Court. The plaintiff again appealed, causing the withdrawal of the contract due to the delay.

         Thereafter, the administrator decided to undertake some repair of the property which was caused to be done by Chimbóle, who personally paid $4, 250 for the repairs to be done by a contractor. The real estate contract for the sale of the property at the center of this appeal was executed on February 15, 2016, for the amount of $169, 900 by a Lincoln P. Gillon (purchaser). The administrator also leased the property to the purchaser with the condition that $750 of the $1, 100 rental would be credited to the ultimate purchase price if approved by probate. At the time of the hearing held by the Probate Court on April 25, 2016, the plaintiff extended an oral offer to purchase the property for the amount of $ 172, 000. He did not provide a deposit at the time of the offer nor did he have a mortgage approval. Upon the filing of the application the Probate Court approved the sale of the property for $169, 900 to the purchaser.

         The plaintiff claims his offer of $172, 000 should have been accepted because it was more generous than that of the purchaser. The court does not find that the amount is significantly or materially more attractive than the $169, 900 for which the property is currently under contract. The court further credits the testimony of the administrator that Steven Poliansky indicated at the time of offer that he might have difficulty securing a loan for the purchase of the property. The court specifically does not credit the testimony of Steven ...

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