Opinion
2009-113.
Decided June 10, 2010.
Sanford B. Potters, Esq., for John L. Rollins, petitioner.
Christopher K. Sowers, P.C., (Christopher K. Sowers, of counsel) for Naomi Rogers, respondent.
A son of the decedent, who is the objectant in a probate proceeding, petitions for the issuance of limited letters of administration to himself in order to obtain the decedent's medical records and to commence an SCPA 2103 discovery proceeding against the decedent's daughter with regard to real property purportedly transferred by the decedent to her shortly after the decedent executed the instrument propounded in the probate proceeding. The daughter, who is the proponent of the instrument, filed objections only to that branch of the application seeking limited letters to commence the discovery proceeding. She argues that the son is going on "a fishing expedition" and any claim he might make concerning the realty transfer is barred by the statute of limitations.
The decedent died on November 3, 2003 survived by the daughter, the petitioner and another son who post-deceased. The propounded instrument, executed on February 17, 2001, gives the daughter a one-half interest in real property located in the Bronx, with the other half of that property divided equally between the two sons; however, a few weeks later, on April 6, 2001, the decedent purportedly transferred the same property to the daughter and post-deceased son as joint tenants with rights of survivorship.
Limited letters of administration are issued pursuant to SCPA 702 (9) and (10) in those instances where, as here, it is unlikely that the person who is the nominated or appointed fiduciary would pursue a claim either because it is against herelf or against another party that the fiduciary would not be inclined to pursue (see Matter of Teah, 166 Misc 2d 976 [granting SCPA 702 (9) application and appointing a son as limited fiduciary to pursue discovery proceeding against nominated executor with regard to loans between nominated executor and decedent]; see also Matter of Leistner, 12 Misc 3d 1153 [A], 2006 Slip Op 50876 [U]; Matter of Davidson, 177 Misc 2d 928). As noted by Surrogate Riordan in Matter of Leistner ( 12 Misc 3d at 1153), the proof required to commence an SCPA 702 proceeding "is the submission of allegations made merely upon information and belief . . . and the granting of limited letters does not resolve the various contested factual issues. . . ."
The daughter's contention that any grant of letters to the petitioner would be futile as any alleged claim would be barred by the applicable statute of limitations is premature until such time as the petitioner has completed disclosure and served a pleading requesting specific relief against her. Nonetheless, the court, in granting limited letters to the petitioner, is not authorizing him to use estate assets to pursue the claim, so his pursuit of the claim will initially be at no expense to the estate. In the event that the petitioner is ultimately successful in recovering assets on behalf of the estate, he may then seek to be reimbursed from estate assets for his expenses in litigating the claim.
Accordingly, the daughter's objections to the issuance of such limited letters to the petitioner are dismissed and the petition is granted in its entirety. The dismissal of the objections is without prejudice to the daughter's right to interpose any defense that she deems appropriate in the event that relief is sought against her individually.
Settle order.