Opinion
520542.
04-07-2016
In the Matter of the ESTATE OF Peter T. BROWN, Deceased. Janet Brown–Castro, as Coadministrator of the Estate of Peter T. Brown, Deceased, Petitioner; Zan Heath, as Coadministrator of the Estate of Peter T. Brown, Deceased, Appellant.
Gallagher Law Office, Binghamton (Brian R. Gallagher of counsel), for appellant.
Gallagher Law Office, Binghamton (Brian R. Gallagher of counsel), for appellant.
Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.
CLARK, J. Appeal from an order of the Surrogate's Court of Broome County (Guy, S.), entered July 16, 2014, which, in a proceeding pursuant to SCPA 711 and 719, granted petitioner's motion for summary judgment and revoked respondent's letters of administration.
Peter T. Brown (hereinafter decedent) died intestate on April 22, 2013 and was survived by petitioner, his daughter and sole distributee. Although petitioner had priority to serve as administrator of decedent's estate (see SCPA 1001 [1] [b] ), she and respondent—decedent's domestic partner—jointly sought letters of administration, which Surrogate's Court (Smith, S.) issued in June 2013. Thereafter, in March 2014, petitioner commenced this proceeding seeking respondent's removal as the coadministrator of decedent's estate. Respondent joined issue and asserted counterclaims for petitioner's removal as coadministrator of the estate or, alternatively, for a decree of probate of one of the two purported wills executed by decedent and the issuance of letters testamentary. Petitioner responded by letter and asserted that respondent's answer and counterclaims were untimely and, in any event, without merit. Following a conference at which counsel for both parties appeared and rested on their papers, Surrogate's Court dismissed respondent's counterclaims seeking a decree of probate and letters testamentary, converted petitioner's letter response into a motion for summary judgment and, upon such conversion, revoked respondent's letters of administration and issued new letters of administration solely to petitioner. Respondent appeals, and we affirm.
In his appellate brief, respondent does not challenge the determination of Surrogate's Court to treat petitioner's letter response as a motion for summary judgment. Accordingly, any issue with respect thereto is deemed abandoned (see
Once issued, Surrogate's Court may revoke letters of administration if there is demonstrated “[f]riction, hostility or antagonism between [the] fiduciary and beneficiaries ..., but only when such enmity threatens to interfere with the administration of the estate” (Matter of Palma, 40 A.D.3d 1157, 1158, 835 N.Y.S.2d 755 [2007] ; see Matter of Morningstar, 21 A.D.3d 1285, 1287, 801 N.Y.S.2d 674 [2005] ; Matter of Duell, 258 A.D.2d 382, 382–383, 685 N.Y.S.2d 686 [1999] ; see also Matter of Beharrie, 84 A.D.3d 1227, 1228–1229, 924 N.Y.S.2d 451 [2011] ; Matter of Sadowski, 21 A.D.3d 1034, 1035, 801 N.Y.S.2d 397 [2005] ). Here, the parties' submissions separately established a complete breakdown of their relationship and evidenced their inability to cooperate as coadministrators of the estate to such an extent that petitioner's interests as a distributee and the proper administration of the estate were threatened. As to the parties' respective motions for removal of the other as administrator, the record established that only petitioner had a statutory right to serve as administrator (see SCPA 1001[1][b] ), that respondent was permitted to serve as an administrator only with petitioner's consent (see SCPA 1001[6] ) and that solely petitioner's interests were at stake in this administration proceeding. Respondent's conclusory allegations of misconduct and unfitness on the part of petitioner were insufficient to establish that she was ineligible or unqualified to serve as administrator of the estate or raise a genuine issue of material fact as to that matter (see SCPA 707[1] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Furthermore, while respondent asserted that he had an interest in decedent's estate by virtue of an agreement that he entered into with petitioner, the writings he submitted to substantiate his claim—namely, a memorandum and a letter written by the attorney for decedent's estate—did not satisfy the statute of frauds as neither bore petitioner's signature and they did little more than suggest an on-going negotiation between respondent and petitioner regarding distribution of the estate (see Scheck v. Francis, 26 N.Y.2d 466, 469–470, 311 N.Y.S.2d 841, 260 N.E.2d 493 [2007] ; Bennett v. First Natl. Bank of Glens Falls, 146 A.D.2d 882, 884, 536 N.Y.S.2d 591 [1989] ; compare Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 56–57, 110 N.E.2d 551 [1953] ). Accordingly, we decline to disturb the determination of Surrogate's Court to revoke respondent's letters of administration and issue them solely to petitioner (see Matter of Palma, 40 A.D.3d at 1159, 835 N.Y.S.2d 755 ; Matter of Duell, 258 A.D.2d at 382–383, 685 N.Y.S.2d 686 ).
ORDERED that the order is affirmed, without costs.
McCARTHY, J.P., EGAN JR., LYNCH and DEVINE, JJ., concur.
Miller v. Genoa AG Ctr., Inc., 124 A.D.3d 1113, 1114 n., 2 N.Y.S.3d 650 [2015] ; Matter of Fairbairn, 9 A.D.3d 579, 580 n., 780 N.Y.S.2d 40 [2004], lv. denied 3 N.Y.3d 612, 788 N.Y.S.2d 668, 821 N.E.2d 973 [2004] ).