Opinion
2013-2710 N C
02-06-2015
Howard Rabin as Executor of the Estate of BERNADINE RABIN, Respondent, v. Norman C. Rabin, Appellant.
PRESENT: : , IANNACCI and GARGUILO, JJ.
Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), entered October 18, 2013. The order denied occupant's motion to vacate a stipulation of settlement and the final judgment entered pursuant thereto, and to dismiss the petition in a licensee summary proceeding.
ORDERED that the order is reversed, without costs, and occupant's motion to vacate the stipulation of settlement and the final judgment entered pursuant thereto, and to dismiss the petition is granted.
Petitioner Howard Rabin is the executor of the estate of Bernadine Rabin, his mother, and the trustee of the special needs trust of his brother, occupant Norman C. Rabin, which trust was created under the decedent's will. The decedent's will also devised the subject house, as part of the residuary estate, to petitioner, another brother, and to occupant's special needs trust in equal one-third shares. Acting in what he claims are the best interests of the estate and of occupant, petitioner, as executor of the estate of Bernadine Rabin, commenced this licensee summary proceeding (RPAPL 713 [7]) to evict occupant from the subject house, in which occupant has lived for many years. Occupant appeals from an order denying his motion to vacate a stipulation of settlement, in which he agreed to vacate the house, and the final judgment entered pursuant thereto, and to dismiss the petition.
In our view, in the circumstances presented, there is a substantial conflict between petitioner's duties as executor of the estate and his duties as trustee of occupant's special needs trust, which, upon the decedent's death, became a tenant in common in the house (EPTL § 6-2.2 [a]; see e.g. Matter of Meltzer, 2009 NY Slip Op 31852[U] [Sur Ct, Nassau County 2009]). In light of this conflict and all of the surrounding circumstances, we are of the view that the issues herein are closely intertwined with the administration of the estate and the trust, and this proceeding would more appropriately lie in the Surrogate's Court (see Flender v Flender, 46 Misc 3d 135[A], 2014 NY Slip Op 51876[U] [App Term 9th & 10th Jud Dists 2014]; cf. Matter of Piccione, 57 NY2d 290 [1982]).
Accordingly, the order is reversed and occupant's motion to vacate the stipulation of settlement and the final judgment entered pursuant thereto, and to dismiss the petition is granted.
Marano, P.J., Iannacci and Garguilo, JJ., concur.
Decision Date: February 06, 2015