Opinion
July 7, 1997
Appeal from the Surrogate's Court, Suffolk County (Prudenti, S.).
Ordered that the order dated July 24, 1996, as amended August 21, 1996, is reversed insofar as appealed from, with costs payable by the respondent, and that branch of the application which was to temporarily restrain Constance Nostrand, inter alia, from collecting rents and profits from the real property of the estate of Viola C. Billings is denied.
Elizabeth Nostrand, a beneficiary under the will of Viola C. Billings, deceased, commenced this proceeding, inter alia, to revoke the letters of administration, c. t. a., previously granted to William Johnson and Claudia Nostrand, and to compel the issuance of letters of administration to her.
The Surrogate's Court has subject matter jurisdiction over the petition, which pertained, inter alia, to management of real property subject to the fiduciary's power to dispose of the property to pay the expenses of the estate ( see, SCPA 201, 1901 Surr. Ct. Proc. Act, 1902 Surr. Ct. Proc. Act; Trask v. Sturges, 170 N.Y. 482; DiSanto v. Wellcraft Mar. Corp., 149 A.D.2d 560).
However, the Surrogate's Court improvidently exercised its discretion by granting a temporary restraining order which, essentially, restrained Constance Nostrand from managing the real property. Elizabeth Nostrand failed to satisfy her burden of showing the property was in danger of immediate and irreparable harm if the injunction were not granted ( see, Graziano v Turiano, 231 A.D.2d 674; McCall v. Beck, 284 App. Div. 838, order amended 284 App. Div. 857).
Miller, J. P., Pizzuto, Joy and Krausman, JJ., concur.