Opinion
06-14-2024
In the MATTER OF the ESTATE OF William A. BEARD, Deceased. Wendy Lougnout, Esq., as Public Administrator, Petitioner-Respondent; v. Diane Beard, Objectant-Appellant.
CERIO LAW OFFICES, PLLC, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR OBJECT ANT-APPELLANT. COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (TERRI CONTI YORK OF COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Surrogate’s Court, Onondaga County (Mary Keib Smith, S.), entered April 13, 2022. The order, insofar as appealed from, granted in part the motion of petitioner for summary judgment dismissing the objections to an accounting.
CERIO LAW OFFICES, PLLC, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR OBJECT ANT-APPELLANT.
COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (TERRI CONTI YORK OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion seeking to dismiss objection F and reinstating that objection, and as modified the order is affirmed without costs.
Memorandum: In this proceeding for the judicial settlement of the final accounting of decedent’s estate, objectant appeals from an order that granted in part petitioner’s motion for summary judgment dismissing the objections to the accounting filed by objectant.
Here, petitioner established prima facie entitlement to judgment as a matter of law with respect to objections A, B, E, F and H by submitting an accounting reflecting decedent’s assets (see Matter of Crane, 100 A.D.3d 626, 628, 953 N.Y.S.2d 170 [2d Dept. 2012], lv dismissed 21 N.Y.3d 1000, 971 N.Y.S.2d 249, 993 N.E.2d 1271 [2013], lv denied 29 N.Y.3d 906, 2017 WL 1718559 [2017]).
We agree with objectant that, in opposition to the motion, she raised an issue of fact with respect to objection F. In objection F, objectant alleged that petitioner had failed to account for items removed from decedent’s estate by another beneficiary. Objectant raised an issue of fact with respect to that objection by submitting evidence that a beneficiary had removed items from the estate, including pieces from a bedroom set, and that petitioner had not applied a corresponding offset to that beneficiary’s share of the estate (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]). We therefore modify the order by denying that part of the motion seeking to dismiss objection F and reinstating that objection. Contrary to objectant’s contention, we conclude that she failed to raise an issue of fact with respect to objections A, B, E, and H (see Crane, 100 A.D.3d at 629, 953 N.Y.S.2d 170; Matter of McAlpine, 85 A.D.3d 1185, 1186, 926 N.Y.S.2d 167 [2d Dept. 2011]; see generally Matter of Wilson, 178 A.D.2d 996, 997, 579 N.Y.S.2d 779 [4th Dept. 1991]).