In August 1990 BNY moved for appointment as executor of the estate and to admit the will to probate, but plaintiff objected and sought to disqualify BNY from serving as executor. Plaintiff also objected to BNY's hiring of MFDDS as counsel to the bank in its administration of the estate. Will of Marsh, 179 A.D.2d 578, 579, 578 N.Y.S.2d 911, 912-13 (1st Dep't 1992). The Surrogate granted BNY preliminary letters testamentary and scheduled a hearing on plaintiff's objections to the appointment of BNY and MFDDS.

A decedent's choice of executor should be given great deference (see Matter of Shaw , 186 AD2d 809, 810; see also Matter of Marsh , 179 AD2d 578, 580).

This appeal ensued. A decedent's choice of executor should be given great deference (seeMatter of Shaw, 186 A.D.2d 809, 810, 589 N.Y.S.2d 97 [1992] ; see alsoMatter of Marsh, 179 A.D.2d 578, 580, 578 N.Y.S.2d 911 [1992] ). The grounds for disqualification of an executor are limited to those specified in SCPA 707 and 711 (seeMatter of Shephard, 249 A.D.2d 748, 749, 671 N.Y.S.2d 561 [1998] ; Matter of Marsh, 179 A.D.2d at 580, 578 N.Y.S.2d 911 ).

Order, Surrogate's Court, New York County (Rita Mella, S.), entered April 22, 2022, which granted cross petitioner-respondent Peter Casanas's petition for letters of administration in the estate of Carlos Casanas and issued limited letters of administration, unanimously affirmed, without costs. The court providently exercised its discretion in issuing limited letters of administration to respondent ( SCPA 702[1] ; seeMatter of Marsh, 179 A.D.2d 578, 580–581, 578 N.Y.S.2d 911 [1st Dept. 1992] ). The letters of administration granted respondent only the authority to prosecute an SCPA 2103 proceeding against Richard Casanas and any third party in possession of assets in the decedent's estate, and conferred no authority to take possession or control of any property.

The court providently exercised its discretion in issuing limited letters of administration to respondent (SCPA 702[1]; see Matter of Marsh, 179 A.D.2d 578, 580-581 [1st Dept 1992]). The letters of administration granted respondent only the authority to prosecute an SCPA 2103 proceeding against Richard Casanas and any third party in possession of assets in the decedent's estate, and conferred no authority to take possession or control of any property.

The Surrogate did not abuse her discretion in not holding an evidentiary hearing on petitioner's allegations that one respondent was unfit to be granted temporary letters under SCPA 707. The scattered allegations, many either irrelevant to operation of the estate's business or separated widely in time, were adequately addressed by the imposition of a bond requirement and acknowledgment of the ultimate right to an accounting (seeMatter of Marsh, 179 A.D.2d 578, 578 N.Y.S.2d 911 [1st Dept. 1992] ).Nor did the Surrogate abuse her discretion in failing to make petitioner a joint administrator.

The Surrogate did not abuse her discretion in not holding an evidentiary hearing on petitioner's allegations that one respondent was unfit to be granted temporary letters under SCPA 707. The scattered allegations, many either irrelevant to operation of the estate's business or separated widely in time, were adequately addressed by the imposition of a bond requirement and acknowledgment of the ultimate right to an accounting (see Matter of Marsh, 179 AD2d 578 [1st Dept 1992]). Nor did the Surrogate abuse her discretion in failing to make petitioner a joint administrator.

Even accepting these allegations as true, the adversity of interest said to exist was not sufficient to nullify decedent's choice to appoint respondents as coexecutors. " ‘[I]t is actual misconduct, not a conflict of interest, that justifies the removal of a fiduciary’ " ( Matter of Morningstar, 21 A.D.3d 1285, 1287, 801 N.Y.S.2d 674 [2005], quoting Matter of Shaw, 186 A.D.2d 809, 810, 589 N.Y.S.2d 97 [1992] ; seeMatter of Marsh, 179 A.D.2d 578, 580, 578 N.Y.S.2d 911 [1992] ; Matter of Foss, 282 App.Div. 509, 513–514, 125 N.Y.S.2d 105 [1953] ; Matter of De Belardino, 77 Misc.2d 253, 255–256, 352 N.Y.S.2d 858 [Sur. Ct., Monroe County 1974], affd 47 A.D.2d 589, 363 N.Y.S.2d 974 [1975] ; Matter of Sandow, 21 Misc.2d 292, 292–293, 192 N.Y.S.2d 975 [Sur.

The information contained in the record does not establish that petitioner is unfit by reason of "want of understanding" ( see SCPA 707 [e]). Indeed, there is no particular reason to doubt his qualifications, or the qualifications of those he would employ to assist him in the task of uncovering and handling the decedent's overseas assets and the existence or identity of distributees, any more than there is reason to doubt the qualifications of the Bank of New York employees who will be assigned those tasks. The asserted business relationship between petitioner and the decedent does not constitute such a conflict as could disqualify him as nominated executor ( see Matter of Marsh, 179 AD2d 578, 580; Matter of Foss, 282 App Div 509, 513). Nor does his inability to present the court with complete information at this time regarding the decedent's $30 million bequest to a purported Liechtenstein foundation cast doubt on the propriety of his nomination as executor. Finally, the perceived need for a bond, at the estate's expense, did not justify denying petitioner's application for temporary letters. Under SCPA 1412 (5) the court may order a bond solely upon a finding of "extraordinary circumstances," while the Surrogate found only "problematic facts underlying the propounded instrument."

As an acknowledged creditor of the estate of Filomena Palma ( seeMatter of Palma, 17 AD3d 817), Robert Palma's estate has standing to challenge the fitness of petitioner to act as executor of the estate ( see SCPA 711; see also SCPA 719). We begin our analysis of the issues of revocation of the preliminary letters without a hearing by recognizing that a decedent's choice of executor should be given great deference and not disregarded unless that executor is not legally qualified to act as a fiduciary ( see Matter of Venezia, 25 AD3d 717, 718; Matter of Hunter, 6 AD3d 117, 127, affd 4 NY3d 260). The grounds for disqualification are limited to those specified in SCPA 707 and 711 ( see Matter of Shephard, 249 AD2d 748, 749; see also Matter of Marsh, 179 AD2d 578, 580), and the party alleging ineligibility bears the burden of proof ( see Matter of Rod, 162 Misc 2d 229, 231 [1994]). A potential conflict of interest on the part of a fiduciary, without actual misconduct, is not sufficient to render the fiduciary unfit to serve ( see Matter of Shephard, supra at 749; see also Matter of Morningstar, 21 AD3d 1285, 1287; Matter of Hunter, supra at 127; Matter of Shaw, 186 AD2d 809, 810; Matter of Marsh, supra at 580).