Opinion
336905.
Decided June 23, 2008.
The appearances of counsel are as follows:
For Respondent, Efrem Seeger, Spizz Cooper, Mineola, NY.
For Respondent, Susan Seeger, Katten Muchin Rosenman, New York, NY.
Petitioner, Pro Se, Charlene Seeger, Great Neck, NY.
In this proceeding to compel an accounting by an attorney-in-fact, respondent moves for an order dismissing the petition.
Harold Seeger died on March 13, 2005. His will was admitted to probate by a decree of this court dated July 12, 2005 and letters testamentary issued to Susan Seeger. Susan Seeger has filed a petition to judicially settle her accounts.
Petitioner is a remainderman and beneficiary of a bequest of $100,000 to be held in trust. She now seeks an accounting from Efrem Seeger, as attorney-in-fact for decedent. He denies any misappropriation of decedent's funds and argues that petitioner's remedy lies in the context of the accounting proceeding now pending.
The Surrogate's Court has jurisdiction to direct an account by an attorney-in-fact ( Matter of Holmberg, 206 AD2d 479 [2d Dept 1994]; Matter of Cohen, 139 Misc 2d 1082 [Sur Ct, Rensselaer County 1988]; Matter of Iannone, 104 Misc 2d 5 [Sur Ct, Monroe County 1980]).
An executor has standing to compel a co-executor, who is an attorney-in-fact, to account ( Matter of Cohen, 139 Misc 2d 1082 [Sur Ct, Rensselaer County 1988] and an executor can commence a proceeding against a co-executor, who was an attorney-in-fact, in order to discover information or seek the return of property to the estate.
The question is whether a beneficiary of the estate has standing to compel the attorney-in-fact to account.
The relationship of attorney-in-fact to his principal is that of agent and principal ( Matter of Ferrara , 7 NY3d 244). The agent has a duty to account to the principal ( Matter of Garson, 2 Misc 3d 847 [Sup Ct, New York County 2003], affd 17 AD3d 243 [1st Dept 2005]).
The executor of the estate stands in the shoes of the deceased principal and thus has standing to compel an accounting from the attorney-in-fact. Where a fiduciary fails or refuses to bring an action, limited letters of administration can issue to another interested person (SCPA 702, subd [9]). However, where there is a pending accounting proceeding, the issue as to whether the executrix failed to collect assets of the estate should be resolved in the accounting proceeding ( see Matter of Levine, 21 Misc 2d 307 [Sur Ct, New York County 1960]).
Accordingly, the motion to dismiss the petition is granted without prejudice to the filing of objections in the accounting proceeding.
This decision constitutes the order of the court and no additional order need be submitted.