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Matter of Vitale

Appellate Division of the Supreme Court of New York, Second Department
Mar 19, 1979
68 A.D.2d 928 (N.Y. App. Div. 1979)

Opinion

March 19, 1979


The appeal is from an order of the Surrogate's Court, Queens County, dated July 26, 1978, which denied William Cerrone's motion, brought pursuant to SCPA 809, inter alia, for leave to commence an action or proceeding on a fiduciary's surety bond. Order affirmed, without costs or disbursements. We agree with the Surrogate that an action directly on the surety bond is not warranted under these circumstances (see United States v Westchester Fire Ins. Co., 478 F.2d 133, 138; see, also, 10A Cox-Arenson-Medina, N.Y. Civ Prac, Dec., 1978 Cum Supp, § 809.01, p 74). The creditor's remedy is to seek the appointment of a successor administrator, c.t.a., pursuant to SCPA 1418, and, upon such appointment, to commence a proceeding pursuant to SCPA 2102 (subd 4). Hopkins, J.P., Damiani, Rabin and Mangano, JJ., concur.


Summaries of

Matter of Vitale

Appellate Division of the Supreme Court of New York, Second Department
Mar 19, 1979
68 A.D.2d 928 (N.Y. App. Div. 1979)
Case details for

Matter of Vitale

Case Details

Full title:In the Matter of the Estate of GIUSEPPE VITALE, Also Known as JOSEPH…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 19, 1979

Citations

68 A.D.2d 928 (N.Y. App. Div. 1979)