Opinion
322635.
Decided August 11, 2004.
Before the court are motions by the respondent Maria Seviroli both individually and in her capacity as guardian of the property of her infant son John Joseph Seviroli to renew and reargue the order of this court dated April 7, 2004 entered on the decisions of this court dated February 26, 2004 ( Matter of Kaszuba, 2 Misc3d 1003[A], 2004 NY Slip Op 50128[U] [2004] and March 31, 2004 (Dec. No. 215). The original motion was for summary judgment by the executrix in this proceeding which was granted in part by this court. An additional motion was made by respondent to be relieved of the limitations on the use of certain confidential information in an ordered stipulation in this estate so as to be able to supplement her opposition to summary judgment. That additional motion was denied.
REARGUMENT
The respondent now seeks leave to reargue the order granting summary judgment insofar as it: (1) awarded possession of the premises to the executrix; (2) ordered the eviction of the respondents and other occupants from decedent's residence; and (3) denied respondent the opportunity to make use of the decedent's estate tax return which was protected by a confidentiality order. Respondent alleges that the court overlooked or misapprehended certain matters of fact and law in determining the original motions (CPLR 2221[d]). Respondent again asserts that the executrix has a conflict of interest and breached her duty to act in good faith to all persons interested in the estate, including Maria Seviroli and her infant son, John Joseph Seviroli. It is claimed again that the executrix' absence of good faith is an issue of fact which cannot be decided on a motion for summary judgment.
The motion to reargue is granted and upon reargument, the court adheres to its prior decision.
The court, in its February 26, 2004 decision, did not specifically treat the issue of good faith in the executrix's exercise of the power to sell. Despite the wide discretion conferred upon this executrix, by the statute and the Will, to sell estate real property, her actions must still comport with the best interests of the estate ( Matter of Kane, 98 AD2d 851). Nevertheless, examination of the exercise of every power of a fiduciary does not require an inquiry into the fiduciary's intent or good faith. The cases relied upon by the respondent are all circumstances where good faith was a stated element of the cause of action plead ( see Tanney v. Greaux, 78 NY2d 1117; Stratakis v. Ferncliff Manor, 308 AD2d 397; Priovolos v. St. Barnabas Hospital, AD3d 126). Ordinarily, a fiduciary has the right to obtain the removal of a statutory distributee where the distributee occupies the premises belonging to the estate in opposition to the wishes of the fiduciary and without payment of any rent or return for the use and occupancy ( Matter of Burstein, 153 Misc 515; Matter of Grad, NYLJ March 28, 2002, at 26, col 6). This is certainly the case in the present circumstances where Maria Seviroli has not paid any money to the estate for use and occupancy of this luxury condominium for several years and the expenses paid by the estate apparently exceed $93,500.00. As the court said in the original decision, the executrix has a duty to prevent the wasting of assets which the continued maintenance of the condominium represents ( Matter of Bismark, 99 AD2d 831). These facts are sufficient to conclude that the executrix has exercised her power to sell in the best interest of the entire estate. The interests of the respondent may diverge from those of the entire estate and yet the fiduciary's action may still be in the best interest of the estate overall.
RENEWAL
John Joseph Seviroli's status as an afterborn has now been recognized by the stipulation of the parties, in a decision of the court dated July 13, 2004 (Dec. No. 519), and in a decree of this court dated July 27, 2004. Leave to renew the motion granting summary judgment on the eviction and turnover of possession of the premises to the executrix, is now sought by the respondent, on the basis that this new fact, which could not have been previously presented, would change the prior determination (CPLR 2221[e]).
In the prior decision, the court considered the then-possible afterborn status of the infant. Assuming the infant to have such status, the court commented on the rights of the residuary beneficiaries to elect to take real property in kind. Nevertheless, the court held that where the guardian ad litem for the infant beneficiary had not attempted to assert a desire for the infant to take the property in kind, his potential status did not defeat the executrix's power to obtain possession and sell (see, EPTL 11-1.1[b][5][F]).
Presently, Maria Seviroli, the guardian of the infant's property, has requested on behalf of the infant a distribution of the property in kind. In the court's decision dated December 5, 2002 in this matter, it was determined that Maria Seviroli might have interests adverse to that of the infant. The court then directed that the guardian ad litem represent the interests of the infant simultaneously with the guardian of his property. Because the mother of the infant has an obligation to support her infant child, a conflict now exists between that duty and her request that the infant's funds be used to provide him and her with shelter solely at the expense of the infant. Accordingly, the infant's status as a 30% residuary beneficiary now puts him in direct conflict with his mother as guardian of his property, concerning the propriety of the sale or request to take the condominium in kind. In these circumstances, Maria Seviroli as guardian of the property of the infant cannot elect to take this real property in kind considering her conflict of interest.
The guardian ad litem has filed papers in opposition to these motions to renew and reargue. The guardian ad litem believes that sale of the property is in the best interests of his ward in order to maximize the cash position of the estate, providing a cash distribution to the infant which can then be prudently invested and provide him with a real legacy. The guardian ad litem is unalterably and unequivocally opposed to an in-kind distribution of the property to the infant. He questions the wisdom of investing a substantial part of the infant's legacy in illiquid real property with regular significant carrying charges which will further reduce the infant's legacy. Under these circumstances the court accepts the guardian ad litem's recommendations and finds that the best interests of the child do not permit the infant to elect to take the property in kind.
In addition, the law is that all the residuary beneficiaries must elect to take the real property in kind in order defeat the fiduciary's power to sell real property which is part of the residuary estate ( Trask v. Sturges, 170 NY 482; Matter of Southwick, 127 AD2d 662, 663;
Matter of Fello, 88 AD2d 600, aff'd 58 NY2d 999; Matter of Sherburne, 95 AD2d 859; Matter of Marino, 146 Misc2d 188, 189-190; Matter of Grad, NYLJ March 28, 2002, at 26, col 6). The reason the law requires all residuary beneficiaries to consent to take property in kind is that title vests in them immediately upon admission of the Will to probate as tenants in common subject only to the executrix' power of sale ( Trask v. Sturges, 170 NY 482, 497; Mellen v. Mellen, 139 NY 210). Thus, the court properly considers the papers submitted by counsel for the decedent's adult children who are 60% residuary beneficiaries. Their opposition to the motion and consent to sale is relevant to this matter of the purported election to take the property in kind
( Mellen v. Mellen, 139 NY 210, 221). Accordingly, even if the guardian of the property had the right to elect to take the property in kind, that election cannot defeat the executrix's right to possession and sale where all of the residuary beneficiaries do not also consent to take the property in kind.
For all of these reasons, the court adheres to its prior determination to grant summary judgment to the estate on the issue of possession and a warrant of eviction. The order of April 7, 2004 shall remain in effect and the court will sign the warrant of eviction with this decision.