Opinion
No. 2012–372193.
09-30-2014
In the Matter of the Administration Proceeding, ESTATE OF Anne FISHMAN, Deceased.
Comerford & Dougherty LLP, Garden City, for Petitioner. Ansanelli Law Group, LLP Amityville, for Objectants.
Comerford & Dougherty LLP, Garden City, for Petitioner.
Ansanelli Law Group, LLP Amityville, for Objectants.
Opinion
EDWARD W. McCARTY III, J.
Before the court is a petition for limited letters of administration in order to bring a discovery proceeding, filed by Barbara Semencic, one of the surviving children of Anne Fishman.
The petition originally filed on November 7, 2012 was for letters of administration, but the petition was amended by affirmation filed June 3, 2014 to seek a decree awarding limited letters for the purpose of commencing a discovery proceeding.
BACKGROUND
Anne Fishman (the “decedent”) died on July 29, 2009, at the age of 87. She was survived by her husband, who post-deceased on May 2, 2011, and by her three children, Barbara Semencic, Edward Fishman and Michael Fishman (“Barbara,” “Edward,” and “Michael”).
The decedent left a will dated April 21, 2006, in which she bequeathed her tangible personal property to her children. Under Article Third of her will, the decedent gave her interest in the co-op apartment located at 85 South Centre Avenue in Rockville Centre, and its furnishings, to Edward. Under Article Fifth of her will the decedent gave 50% of her residuary estate to Edward, with Barbara and Michael each receiving 25%. The decedent nominated Edward as executor, and Barbara as successor executor if Edward failed to survive or declined to act or ceased to act after having qualified.
After the present petition for limited letters was filed, decedent's will was filed but not offered for probate. Edward has indicated in objections (discussed below) that (1) there is no personal property in the estate to administer, (2) the gross estate is less than the funeral expenses, and (3) there are no unpaid creditors or taxes.
OBJECTIONS
In objections to Barbara's petition for limited letters, filed by Edward and Michael on June 27, 2014, Edward and Michael (“respondents”) assert that the petition for limited letters must be denied because Barbara's petition (1) does not reflect that decedent left a will; (2) does not reflect that decedent was survived by her spouse; (3) alleges that decedent's estate contained $499,000.00, when Barbara was aware that the estate contained no assets; (4) lacks specific allegations as to the need for limited letters. Respondents further argue that the only petition filed is for full letters, not limited letters, and that there was defective service of the citation. Moreover, objectants claim that it would be inappropriate for Barbara to receive limited letters because of her estranged relationship with decedent, her antagonistic relationship with her brothers, and her lack of familiarity with decedent's affairs. Objectants argue that full letters or limited letters should issue to Edward as the nominated executor under decedent's will, and that the petition for limited letters must be denied.
REPLY AFFIRMATION
In a reply affirmation, counsel for Barbara states that the purpose of the petition is to bring a proceeding to discover and turnover property wrongfully converted by Edward and Michael to the detriment of the estate and Barbara's rights. Counsel argues that the reason there are no estate assets is that the respondents converted all of decedent's assets for their own use. She further asserts that any alleged defective service of the citation was cured by subsequent service and by the appearance of counsel for the objectants in this matter. Finally, counsel argues that it is absurd for the respondents to suggest that the court issue limited letters to Edward when he is the party who converted decedent's assets to his own use.
ANALYSIS
SCPA 702 was originally created for the issuance of limited letters in estates where issuance of full letters was unnecessary (Matter of Stoller, 4 Misc.3d 538, 539 [Sur Ct, New York County 2004] ). As amended in 1993, subdivision (9) of SCPA 702 permits the court to issue limited letters where there may be a claim of the estate against the executor in his or her individual capacity. This subdivision is designed to preserve the decedent's choice of fiduciary “by permitting the appointment of a second limited administrator instead of requiring the disqualification or removal of original fiduciaries where their conflicts of interests preclude them from pursuing claims against themselves or others to the prejudice of other persons interested in the estate” (Matter of Teah, 166 Misc.2d 976, 977 [Sur Ct, Bronx County 1996] [citing Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 702, at 508 ).
In the present case, the nominated executor filed the decedent's will but did not offer it for probate or seek letters testamentary, on the ground that there are no assets to administer. Petitioner insists that there are no assets to administer because the nominated executor converted them to his own use. Petitioner has a 25% interest in the decedent's residuary estate and will unquestionably be prejudiced in the event that the estate assets are not fully collected and accounted for.
In Matter of Teah, cited above, the court was presented with a petition by a testate decedent's sole distributee who sought limited letters of administration, although he was not nominated as a fiduciary under his father's will. No proceeding had been filed to seek the admission of decedent's will to probate, and decedent's son wished to initiate proceedings against the nominated fiduciary and another individual who allegedly had possession of estate property. Despite the objections of the nominated fiduciary, the court granted the petition on the following basis:
“It is self-evident that objectant could not commence a discovery proceeding against himself. Moreover, objectant's failure to file a probate proceeding in the [time period] that ... elapsed since decedent's death speaks for itself with regard to his lack of enthusiasm for obtaining the status of a fiduciary in order that he might pursue a discovery proceeding.... Petitioner should not have to wait to pursue these claims by filing objections in an accounting proceeding which obviously could not be done until such time, if ever, that objectant takes the necessary steps to be appointed the fiduciary and ultimately files an account reflecting that he has not pursued these claims. Not only would the delay in pursuing the claims be prejudicial in the event that crucial evidence became unascertainable with the passage of time, but also because such a course would place upon petitioner the burden of first having to prove that the claims should have been pursued and then having to establish the sums that would have been recovered on behalf of the estate if they had been expeditiously pursued.
Had objectant taken the necessary steps to have himself appointed preliminary or permanent executor, this case would present the model for utilizing SCPA 702(9) to grant limited letters of administration to petitioner so that he would not be prejudiced by objectant's conflict of interest with regard to the claims. It is not unreasonable to assume that objectant has not sought to probate the filed will because he is presently unaware of any assets that would be distributed pursuant to its terms. Petitioner believes that there might be such assets and he should be permitted to pursue the claims at his own expense. Accordingly, pursuant to the spirit if not the letter of SCPA 702(9), since there is no other appointed fiduciary at this time, petitioner shall receive letters of administration limited solely to commencing a discovery proceeding against objectant and the party with whom he allegedly had a business and social relationship. All of the expenses of the discovery proceeding shall initially be borne by petitioner, individually, including counsel fees, without prejudice to his right to seek reimbursement from estate assets in the event that the discovery proceeding results in a recovery which benefits the estate” Matter of Teah, 166 Misc.2d 976, 978 [Sur Ct, Bronx County 1996] ).
A parallel analysis applies to the facts presented to this court. Edward has not petitioned for probate or applied for letters testamentary, on the basis that decedent's estate lacks assets requiring his administration. Barbara claims that there are estate assets, which Edward and Michael have converted to their own use. Even if Barbara's claims are correct, the court cannot expect that Edward would pursue these claims against himself. The most expeditious way to proceed is for the court to grant limited letters of administration to Barbara, so that she may initiate a discovery proceeding against Edward and Michael.
Furthermore, with regard to claim by Edward and Michael of improper service of process, although they raised that defense in their answer, they failed to move to dismiss on that ground within 60 days of filing their answer and that defense is, therefore, waived (CPLR 3211[e] ; Warsoe Acquisition Corp. v. DeNoble, 116 AD3D 949 [2d Dept 2014] ; Dimond v. Verdon, 5 AD3d 718 [2d Dept 2004] ; Weinstein–Korn–Miller, N.Y. Civ Prac ¶ 3211.49).
CONCLUSION
Petitioner is entitled to limited letters of administration for the purpose of bringing a proceeding to discover and turnover property belonging to the estate. Petitioner shall be responsible for her own legal fees and any other expenses of a discovery proceeding, without prejudice to seek reimbursement from the estate should she recover assets which benefit decedent's estate.
A decree has been settled on notice and will be signed if it is found to be in order and in accord with this decision.