Opinion
Argued January 18, 2000
March 9, 2000
In a proceeding, inter alia, pursuant to EPTL 11-4.6 to compel the respondent administrator Steven E. Zipser to pay the full amount of a final judgment of the Supreme Court, Westchester County, entered May 21, 1998, and pursuant to SCPA 809 for leave to commence an action against the respondent Western Surety Company to recover on a bond it issued in connection with the administration of the estate of Dennis Zipser, the petitioner appeals from an order of the Surrogate's Court, Westchester County (Emanuelli, S.), dated October 16, 1998, which denied the petition and dismissed the proceeding.
William R. Kutner, White Plains, N.Y., for appellant.
Stockman Wallach Lentz Gamell, LLP, New York, N.Y. (Henry James Wallach and Steven H. Rittmaster of counsel), for respondent Western Surety Company.
WILLIAM C. THOMPSON, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs payable by the appellant to the respondent Western Surety Company.
The Surrogate's Court properly denied that branch of the petition which was to compel the administrator Steven E. Zipser to pay the full amount of the judgment as the account of the estate had not been settled (see, Matter of Lesser, 154 Misc. 364 ).
The court properly denied that branch of the petition which was to commence an action against the respondent Western Surety Company to recover on a bond it issued in connection with the administration of the estate of Dennis Zipser. A fiduciary's liability must first be ascertained and determined by the Surrogate's Court before a surety's liability under the bond can attach (see, U.S. v. Westchester Fire Insurance Company, 478 F.2d 133 ; Matter of Aquino, 186 Misc. 7, affd 271 App. Div. 780).
THOMPSON, J.P., SULLIVAN, KRAUSMAN, and SMITH, JJ., concur.
DECISION ORDER ON MOTION
Motion by the appellant on an appeal from an order of the Surrogate's Court, Westchester County, dated October 16, 1998, inter alia, to strike certain portions of the brief submitted by the respondent Western Surety Company on the ground that they relate to matters dehors the record. By decision and order on motion of this court dated October 27, 1999, that branch of the motion which was to strike portions of the brief submitted by the respondent Western Surety Company was referred to the Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the branch of the motion which is to strike so much of the brief as related to the status of another action between the parties commenced in Supreme Court, Bronx County, is granted, and those portions of the brief have not been considered on this appeal; and it is further,
ORDERED that the motion is otherwise denied.
THOMPSON, J.P., SULLIVAN, KRAUSMAN, and SMITH, JJ., concur.