ESTATE OF DEBBIE GARVEY, Deceased (14/1602/A) — The administrator, a designee of the decedent’s children, seeks to lift the restrictions on her limited letters of administration so she may receive and distribute the settlement proceeds of a personal injury cause of action.The decedent sustained injuries as a result of an alleged slip and fall accident and died intestate on April 13, 2013 of unrelated causes. The decedent’s only distributees, two children, and the New York State Department of Taxation and Finance consent to the application.Disbursements are allowed in the reduced sum of $5,471.98 eliminating certain items normally considered office overhead. Counsel fees are allowed pursuant to the retainer agreement. The sum of $4,347 is to be paid to Lisa Robinson in reimbursement of the decedent’s funeral expenses. The sum of $49,000 is to be paid to the New York City Department of Social Services/HRA for its Medicaid claim. The net distributable proceeds shall be paid to the decedent’s children in equal shares (see EPTL 4-1.1 [a] [3]).Submit decree.March 6, 2018ESTATE OF ELMO SEDA, Deceased (14/1701/A/B) — In these two applications, the administrator, the decedent’s daughter, seeks to distribute the remaining proceeds of causes of action settled in the Supreme Court, New York County, before a Special Master which are being held in his attorneys’ escrow account. The causes of action arose from the decedent’s exposure to asbestos. The supreme court orders, inter alia, directed the payment of counsel fees, disbursements and a subrogation claim.The decedent died intestate on May 4, 2001. His distributees are the petitioner and two sons, all of whom were all over the age of 21 on the date of his death. Jurisdiction was obtained over one of the sons, who appeared on the return date of citation in each application and, thereafter, entered into a written stipulation with the petitioner indicating consent to the two pending and all future applications, to the allocation of the settlement proceeds in a certain manner and that he is to receive one-third of the net distributable proceeds allocated to the personal injury causes of action. Under the circumstances presented, including the consents of the other son and the New York State Department of Taxation and Finance, and the lack of any unpaid debts or claims presented herein, the court grants the request in each application to allocate 90 percent of the net distributable proceeds to the personal injury cause of action and the balance to the wrongful death cause of action.In each application, the funds allocated to personal injury are to be paid to the administrator to be distributed pursuant to the terms of the written stipulation and EPTL 4-1.1. The funds allocated to wrongful death are to be paid to the three children in equal shares, as requested. The restrictions imposed upon the administrator and her counsel shall remain in full force and effect with regard to any remaining defendants and causes of action.Submit decrees.March 5, 2018ESTATE OF EUGENIA STANESCU, Deceased (11/2309/A) — In this contested probate proceeding concerning an instrument dated June 23, 2011, the objectant, one of the decedent’s sons, moves, pursuant to CPLR 2307 and a “so-ordered” written stipulation dated January 18, 2018, for the issuance of a “so ordered” subpoena duces tecum to be served on the Department of Health & Human Services, Centers for Medicare & Medicaid Services (HHS). Although the “so-ordered” stipulation, provides, inter alia, that the objectant’s application was to be unopposed, the proponent filed limited opposition to the motion as to the 13-year time period for which documents were sought, pursuant to the “3-2″ rule (see Uniform Rules for Surrogate’s Court [22 NYCRR §207.27]; Matter of Stanescu, NYLJ, Aug. 23, 2017 at 27, col 1 [Sur Ct, Bronx County 2017]). The objectant then amended the application to request production of applicable records from July 23, 2008 up to and through August 26, 2011.Accordingly, as the amended application comports with the “3-2″ rule and the court’s decision on the movant’s discovery motion, this decision constitutes the order of the court granting the motion as amended.Proceed accordingly.March 6, 2018GUARDIANSHIP OF FREDDY N.M. Pursuant to SCPA Article 17-A (11/925/A) — This is a proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act seeking to modify the decree dated June 2, 2011 to appoint the petitioner, the respondent’s fiance, as successor guardian of the person of the respondent who was previously determined to be an developmentally disabled person.By decision dated the same date as the decree, this court adjudicated the respondent to be a developmentally disabled person and appointed his mother, Luigi M., as guardian of his person. The respondent’s mother has signed a resignation and consent, and the respondent’s sister also consents to the application. The petitioner and the respondent both appeared at the hearing on this application.As it appears that the proposed successor guardian is qualified to serve as the respondent’s guardian and that the appointment is in the best interests of the respondent, the application is granted. Letters of successor guardianship of the person of the respondent shall issue to Crystal C., the respondent’s fiance.The Chief Clerk is directed to mail a copy of this decision and decree to the pro se petitioner.Decree signed.March 5, 2018GUARDIANSHIP OF GISELLE M.L., Pursuant to SCPA Article 17-A (17/676) — This is a proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act for the appointment of the petitioner as guardian of the person of the respondent, an alleged intellectually disabled person.Upon the oral and documentary proof adduced at the hearing at which the proposed guardian appeared and the court waived the appearance of the respondent based on the medical certifications, it appears to the satisfaction of the court that the respondent is an intellectually disabled person within the provisions of Article 17-A of the SCPA and that she lacks the capacity to make health care decisions. The court is also satisfied that the petitioner is qualified to assume the responsibility of serving as the respondent’s guardian.Accordingly, the application is granted. Letters of guardianship of the person of the respondent shall issue to Alejandro L., her father.The Chief Clerk is to mail a copy of this decision and the decree to the pro se petitioner.Decree signed.March 6, 2018ESTATE OF IRVING ROSEN, Deceased (17/1009) — In this probate proceeding, the preliminary executor, the decedent’s spouse and sole beneficiary under the propounded instrument dated March 22, 2013, moves to dismiss the “objections” submitted in this proceeding by the decedent’s son, however, no formal objections were ever formally filed with the court and, instead it appears the objections were only served on the proponent. The decedent’s son failed to oppose the motion.This matter first appeared on the court’s calendar on June 13, 2017 and as jurisdiction was not complete, it was marked “supplemental citation.” After two additional return dates, the son appeared with counsel on September 12, 2017 and requested SCPA 1404 examinations. The matter was then marked that objections, if any, were to be served and filed within 10 days of the completion of the SCPA 1404 examinations (see SCPA 1410). No objections were ever filed and this motion ensued.On this state of the record, there is no basis for the court to grant the motion, and this decision constitutes the order of the court denying the same, without prejudice to the proponent making any other appropriate application to move this matter forward.A copy of this decision and order shall be served by the movant upon counsel for the son.Proceed accordingly.March 5, 2018GUARDIANSHIP OF JAILENE M., Pursuant to SCPA Article 17-A (17/2397) — This is a proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act for the appointment of the petitioners as guardians of the person of the respondent, an alleged intellectually disabled person.Upon the oral and documentary proof adduced at the hearing at which the proposed guardians and the ward appeared, it appears to the satisfaction of the court that the respondent is an intellectually disabled person within the provisions of Article 17-A of the SCPA and that she lacks the capacity to make health care decisions. The court is further satisfied that the petitioners, the proposed standby and first alternate standby guardians are qualified to assume the responsibility of serving as the respondent’s guardians.Accordingly, the application is granted. Letters of guardianship of the person of the respondent shall issue to Lucia A. and Gilberto M., her parents. The respondent’s aunt, Dilenia M. A. is appointed standby guardian to serve when the primary guardians are no longer able to do so. Respondent’s brother, Gilbert M., is appointed first alternate standby guardian to serve when neither the primary guardians nor the standby guardian are able to do so. The successor guardians shall assume the duties of their office subject to qualification and confirmation pursuant to SCPA 1757.The Chief Clerk shall mail a copy of this decision and the decree to the pro se petitioners.Decree signed.March 6, 2018ESTATE OF JEANETTE REISS, Deceased (09/537/A) — In this uncontested proceeding, the executor, the attorney/drafter of the decedent’s will dated October 4, 2001 which was admitted to probate by decree dated March 31, 2010, filed a petition seeking, pursuant to SCPA 1420 (1) and the cy pres doctrine (EPTL 8-1.1 [c]), to construe and reform Article FOURTH of the will to substitute two Jewish charities, OHEL Children’s Home and Family Services (OHEL) and Merkos L’Inyonei Chinuch, Inc. (Merkos) in the place and stead of the Graenum Berger Bronx Jewish Federation Service Center (Graenum Berger), a 50 percent residuary beneficiary which allegedly is defunct. Consents were filed for OHEL, Merkos and Diskin Orphan Home of Israel which is the remaining 50 percent residuary beneficiary. The Attorney General, on behalf of charitable beneficiaries, has no objection to the relief sought provided that the funds are to be used for needy individuals, food assistance and programs for Holocaust survivors, which services were formerly provided by Graenum Berger.The decedent died testate on March 8, 2009 at the age of 92. She never married or had children. A consent was filed in the probate proceeding for her only distributee, a niece, who is not a testamentary beneficiary.In support of the application, the petitioner asserts that Graenum Berger is not listed on the Internal Revenue Service website for tax exempt organizations, an investigator from his office visited its last known address and could not locate it, and he annexes an internet article from UJA Federation dated December 2, 2010 announcing its closure. An Assistant Attorney General put the petitioner in touch with the former coordinator of social services at Graenum and its former director who confirmed that Graenum was closed, could not be “revived” and respectively recommended OHEL and Merkos as alternate charities performing like services.Under the cy pres doctrine, the court has authority to interpret or reform testamentary provisions to effectuate the testator’s charitable intent whenever literal compliance with the terms of a charitable bequest is impracticable or impossible (see EPTL 8-1.1 [c] [1]; Matter of Mayer, NYLJ, Aug. 30, 2013 at 31 [Sur Ct, Bronx County 2013]; Matter of Law, NYLJ, Sept. 5, 1995 at 21, col 1 [Sur Ct, NY County 1995]). Specifically, cy pres can be used to name or ascertain a beneficiary (see Matter of Carner, 67 AD2d 333 [4th Dept 1979], affd 50 NY2d 941 [1980]; Matter of Hynard, NYLJ, Oct 1, 1998 at 29, col 2 [Sur Ct, Suffolk County 1998]). Three conditions must be met before applying the doctrine of cy pres: (1) the gift or trust must be charitable in nature; (2) the donor must have demonstrated a general, rather than a specific, charitable intent; and (3) circumstances have changed subsequent to the gift that render literal compliance with the restriction impossible or impracticable (see EPTL 8-1.1; Matter of Othmer, 12 Misc3d 414 [Sur Ct. Kings County 2006]). In addition, the proposed modification must closely approximate the intent of the testator (see Matter of Wilson, 87 AD2d 98 [3rd Dept 1982], affd 59 NY2d 461 [1983]).Here, the testator’s testamentary scheme was generally intended to benefit Jewish charities. Her will left one-half of the residuary estate to a Jewish orphanage and the other half to Graenum Berger which formerly offered global assistance to the general Jewish community and Holocaust survivors assistance with daily living, including providing meals, social services, Jewish holiday celebrations and burial assistance. It is also evident that the testator did not intend a forfeiture of the bequest to Graenum Berger to an individual or to the other 50 percent residuary beneficiary in the event that the bequest failed (see Matter of Mayer, NYLJ, Aug. 13, 2013 at 31; Matter of Cross, NYLJ, Jan. 25, 2010 at 31, col 5 [Sur Ct, Suffolk County 2010]; Matter of Goehringer, 69 Misc 2d 145 [Sur Ct, NY County 1972]), and the services offered by OHEL and Merkos closely approximate those offered by Graenum Berger.Based upon the foregoing, the court finds that the cy pres power should be exercised over the bequest to Graenum Berger in favor of OHEL and Merkos, and the application is granted.Settle decree.March 5, 2018ESTATE OF MARIA TYNES, Deceased (15/986/A) — The administrator, the decedent’s daughter, seeks to lift the restrictions in her letters of administration so that she may receive and distribute the net proceeds of a personal injury cause of action resolved after arbitration.The decedent sustained injuries on November 23, 2009 after being struck by a motor vehicle as a pedestrian and died intestate of unrelated causes on October 10, 2014. In addition to the petitioner, the decedent’s only other distributee is a son who consents to the application. Citation issued to the New York City Department of Social Services which appeared and, after being afforded an opportunity to file objections, failed to do so. Citation also issued to MSPRC/Medicare Secondary Payer Recovery Contractor to disallow any claim that it may have and it defaulted. The New York State Department of Taxation consents to the application.Disbursements and counsel fees are allowed pursuant to the retainer agreement. The sum of $6,049.75 is to be paid to Alexis Tynes in reimbursement of the decedent’s funeral expenses. Notwithstanding the default of Medicare/MSPRC in this proceeding, the petitioner proceeds at her own risk with regards to any future claim it may have (see Matter of Adams, NYLJ, May 15, 2009, at 38, col. 4, 5 [Sur Ct, Bronx County 2009]). The net distributable proceeds are to be paid to the children equally (EPTL 4-1.1 [a] [3]).Submit decree.March 5, 2018ESTATE OF MOLEMIA STEPHENSON, Deceased (13/2697) — In this application by a son of the decedent for the issuance of letters of administration, jurisdiction was not obtained over the estate of the post-deceased spouse; however it appears that the distributees of the post-deceased spouse are the same as the decedent. Two other sons consented to the application and citation issued to two other sons, one who is alleged to be under a disability, without any appearance in opposition. It would appear that if the disability caused the default of one son, he would be ineligible to serve as the fiduciary of the estate. Of course, if appropriate, a guardian ad litem shall be appointed for him in any future accounting or other appropriate proceeding.Accordingly, in the absence of any appearance in opposition, letters of administration shall issue to the petitioner upon his posting a bond in the penal sum of $34,000.Submit decree.March 1, 2018GUARDIANSHIP OF PAMELA J.K. Pursuant to SCPA Article 17-A (71/A/270G) — This is a proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act seeking to amend the decree dated May 21, 1976 to appoint a co-guardian of the person and property of the respondent. In the prior decree, the court appointed the respondent’s mother Carol K., the petitioner herein, as guardian of the person and property of the respondent.Upon the documentary proof submitted it appears that the nominated co-guardian is qualified to assume the responsibility of serving as a co-guardian of the respondent’s person and property.Accordingly, the application is granted. The decree dated May 21, 1976 is hereby amended to add Judith D., her cousin as co-guardian of the person and property of the respondent.Order signed.March 5, 2018ESTATE OF STELLA HATJYGEORGE, Deceased (15/2399) — In this probate proceeding, in which there is a pending motion for summary judgment, the parties entered into an agreement resolving all issues. The stipulation provides, inter alia, that the motion for summary judgment is withdrawn; the objections are withdrawn with prejudice provided there is compliance with the terms of the stipulation and the probate would proceed as an uncontested proceeding. Accordingly, this decision constitutes the order of the court marking the summary judgment motion withdrawn and referring the matter to the probate clerk as an uncontested proceeding.Proceed accordingly.March 6, 2018ESTATE OF THERESA ANN CASINO, ALSO KNOWN AS THERESA CASINO ORTIZ, Deceased (16/1349/A) — The administrator, the decedent’s spouse, seeks to lift the restrictions on his limited letters of administration so he may receive and judicially settle the remaining proceeds of personal injury causes of action.The decedent sustained injuries as a result of an alleged slip and fall accident and died intestate on August 6, 2015, of unrelated causes. Jurisdiction was obtained over the decedent’s other distritibutees, two children, and they defaulted. The New York State Department of Taxation and Finance consents to the application.Disbursements and counsel fees are allowed in the sum requested. The sum of $1,258.34 is to be paid to the New York State Department of Taxation and Finance for its claim. The sum of $4,761.73 is to be paid to Cigna Insurance c/o Optum for its subrogation claim. The sums of $936.91 and $186.63 are to be paid to DCM Services on behalf of Credit Card Corporation and Verizon; respectively, for their claims against the decedent’s estate.The net distributable proceeds are to be paid to the decedent’s distributees pursuant to EPTL 4-1.1 (a)(1).Submit decree.March 1, 2018ESTATE OF THOMAS A. SHEA, Deceased (16/1296) — In this probate proceeding, objections to probate of the instrument dated May 7, 2016 were filed by Laurene Delgado, as administrator of the Estate of Elizabeth A. Jones, the decedent’s alleged cousin, by the Attorney General of the State of New York and by the guardian ad litem appointed for unknown heirs. On an adjourned return date of an SCPA 1411 citation, the objections of all parties were settled pursuant to the terms of a stipulation entered into on the record in open court. The guardian ad litem requested and received permission to enter into the stipulation on behalf of her wards. The matter was thereafter referred to the probate clerk as an uncontested proceeding and the proponent has now settled a decree admitting the will to probate in accord with the terms of the stipulation.Accordingly, the will has been admitted to probate subject to the parties’ stipulation, the letters of temporary administration that issued to the proponent are revoked and it is further ordered that the proponent is to judicially settle his account as both temporary administrator and as administrator c.t.a. within 12 months of issuance of letters of administration c.t.a.Decree signed.March 6, 2018ESTATE OF WILLIAM WARREN, ALSO KNOWN AS WILLIAM JOSEPH WARREN, ALSO KNOWN AS WILLIAM J. WARREN, Jr., Deceased (07/C/486A) — In this proceeding, the petitioner, the decedent’s son, who is the administrator d.b.n. and distributee, filed an order to show cause pursuant to SCPA 2107 seeking advice and direction on the sale of real property located at 3178 Valhalla Drive in the Bronx (Realty) to himself. The petitioner is also the executor of the estate of the decedent’s post-deceased spouse.The decedent died intestate on June 22, 2007, survived by the spouse, the petitioner and a daughter, as his distributees. After the decedent’s death, the spouse was appointed administrator of this estate, and entered into an agreement to transfer the Realty to the petitioner, however she died testate on February 15, 2017 before the transfer could occur. The petitioner is the executor of the spouse’s will dated May 21, 2015 which was admitted to probate by decree dated October 30, 2017. Under her will, specific bequests are made to the spouse’s grandchildren, including three of whom are infants; the petitioner is given a right of first refusal for the Realty; and the residue is transferred equally to the petitioner and three daughters. The spouse also indicated her desire that her family cooperates in permitting the petitioner to purchase the Realty. All adult parties consent to the application and the court dispensed with a guardian ad litem for the infants insofar as they are not adversely affected by the application.In support of the application, the petitioner provides a copy of the agreement with his late mother, the spouse, evidencing her intent to transfer the Realty to him under the same terms proposed in the application. Under the circumstances presented, that the fiduciary seeks advice and direction to sell the Realty to himself because of an inherent conflict, the terms are the same as those agreed upon by his late mother and the consents of all competent interested parties, the application is granted (see SCPA 2107 [2]; Matter of Marino, 36 Misc 3d 1215[A], 2012 NY Slip Op 51327 [U] [Sur Ct, Bronx County 2012]); Matter of Weinstein, 25 AD2d 776 [2nd Dept 1966]).Submit order.March 6, 2018
