Surrogate Edward McCarty III
Decedent’s three children were issued letters testamentary for their father’s estate. There has been ongoing litigation between the siblings in connection with the administration of their father’s and mother’s estates—she post-deceased the father. The two brothers, Neil and Mitchell, filed their account as coexecutors of their father’s estate. They brought a petition to compel their sister, Elissa, to file her account. Elissa failed to appear in connection with the account filed by her brothers, or to file her own account. Neil and Mitchell filed an order to show cause to enforce a court order directing Elissa to file an account, and to punish her for contempt by revoking her letters testamentary. Elissa filed her account, and moved to vacate her default claiming it was excusable, and not intentional, and that she had a meritorious defense. The court noted Elissa’s filing of her account rendered the parties’ requests for relief moot, except on certain of Elissa’s requests. It stated Elissa failed to present a reasonable excuse for her failure to appear on the return date of a citation, finding her proffered excuse insufficient to support vacatur of default. The motion to vacate and set aside a Feb. 6, 2013 decision and request to conduct discovery and file objections to her brothers’ account was denied.
