ESTATE OF ANGEL L. CASTRO, ALSO KNOWN AS ANGEL LUIS CASTRO, ALSO KNOWN AS ANGEL CASTRO (16/2053/A) — In this proceeding by the proponent, the decedent’s niece who is an attorney, seeking to probate an instrument dated August 12, 2010, jurisdiction was obtained over the decedent’s distributees, a daughter who defaulted, and a son under a disability, on whose behalf objections were interposed by the guardian ad litem appointed for him. Although inartfully drawn, the instrument provides that the petitioner and the daughter are equal testamentary beneficiaries with a direction that the petitioner hold her share “in trust for [the] son.” All of the objections and issues which were or could have been raised by the parties were settled pursuant to the terms of a “so-ordered” written stipulation, which provides, inter alia, that: (1) the objections filed by the guardian ad litem are withdrawn; (2) a certain payment is to be made by the estate to the duly appointed trustee of a supplemental needs trust to be established for the son under a disability; and, (3) the decedent’s will is to be admitted to probate subject to the terms of the written stipulation which is to be “so-ordered herein.”The court is satisfied that the testator executed the will dated August 12, 2010 in its present form in compliance with the statutory requirements and that, at the time of its execution, the testator was competent to make a will and was free from restraint. Accordingly, the will dated August 12, 2010 is entitled to be admitted to probate, subject to the terms of the written stipulation, which is “so-ordered” by this decision which constitutes the order of the court (see the Uniform Rules of Surrogate’s Court [22 NYCRR] §207.52; also see EPTL 3-2.1; SCPA 1408).The request for appointment of a testamentary trustee is denied as academic, as the petitioner will not hold any assets in trust for the son under a disability and any payments to be made on behalf of the son are to be made to the trustee of a supplemental needs trust to be established for his benefit.Decree signed.February 26, 2018ESTATE OF DANIEL MOLONEY, Deceased (15/439/B) — In this proceeding to judicially settle the account of the petitioners, who are the co-administrators, an attorney-designee and the guardian of the property for an infant distributee, there were no objections by the guardian ad litem for the infant. Accordingly, on this state of the record the petitioners’ account is approved.Decree signed.February 26, 2018ESTATE OF DAYOLI VENTURA, Deceased (16/1734/A) — The co-administrators, the decedent’s sister and mother, seek to lift the restrictions on their limited letters of co-administration so that they may distribute the net proceeds of causes of action settled in Supreme Court, Bronx County (J. McKeon). The supreme court order, inter alia, awarded attorney fees and disbursements, and directed the payment of a Medicaid lien and reimbursement of funeral expenses. The co-administrators also seek to disqualify the decedent’s father from receiving a distributive share of the decedent’s estate on the grounds of abandonment and failure to support the decedent (see EPTL 4-1.4).The decedent sustained injuries due to alleged medical malpractice stemming from a procedure she underwent on August 15, 2015 and died intestate on August 24, 2015 at another medical facility. In addtion to the mother the decedent’s other distributtee is her father who was served with citation in this matter and defaulted. The New York State Department of Taxation and Finance consents to the relief requested. The court declines to allocate the recovery at this time as it is premature insofar as an action remains against the second medical facility.Statutory commissions are allowed. The uncontroverted allegations that the decedent’s father abandoned and failed to support the decedent are deemed due proof thereof (SCPA 509). Accordingly, the court finds that the decedent’s father abandoned and failed to support the decedent and, consequently, is not entitled to a distributive share of the decedent’s estate (see EPTL 4-1.1 [a] [1]). The net distributable proceeds are to be paid to the mother. The restrictions contained in the limited letters of co-administration shall remain with regard to the remaining defendants and causes of action.Submit decree.March 1, 2018GUARDIANSHIP OF EDWIN A., Pursuant to SCPA Article 17-A (17/2165) — 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 and the respondent were present, 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 he lacks the capacity to make health care decisions. The court is further satisfied that the petitioner, the proposed standby guardian and the first and second alternate standby guardians are 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 Carlos H. Y., his stepfather. The respondent’s brother, Jose A., is appointed standby guardian to serve when the primary guardian is unable to do so. Juan A., another brother, is appointed first alternate standby guardian to serve when neither the primary guardian nor the standby guardian is able to do so, and David A., another brother, is appointed second alternate standby guardian to serve when none of the aforementioned guardians is 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 is directed to mail a copy of this decision and decree to the pro se petitioner.Decree signed.February 26, 2018ESTATE OF FREDERICK DENNIS GREENE, Deceased (17/2461) — This is a proceeding for the issuance of ancillary letters of administration to the administrator of the decedent’s estate appointed by the Probate Court of Montgomery County, Ohio, the decedent’s alleged domicile. It appears that the decedent possessed an interest in personal property and a condominium located in Bronx County that require administration. All of the decedent’s distributees, four brothers, two nephews and two nieces, and the New York State Department of Taxation and Finance consent to the relief requested.Accordingly, the application is granted and ancillary letters of administration shall issue to the petitioner (SCPA 1607 [2] [a]). The letters shall be subject to the provisions of SCPA 805 (3) with regard to the disposition of any real property.Decree signed.February 28, 2018ESTATE OF HEADY SELGADO, Deceased (12/62/A) — The executor, the decedent’s companion and sole beneficiary under the will dated April 16, 2010, which was admitted to probate on October 31, 2013, moves for summary judgment seeking dismissal of the “objections” submitted in this proceeding seeking to lift the restrictions contained in the letters testamentary so that he may distribute the net proceeds of a personal injury cause of action. Although the motion seeks to dismiss the “objections”, no formal objections were filed in this proceeding, rather, an attorney for the decedent’s mother and brother (respondents) filed “opposition to the allocation”. The attorney for the respondents was subsequently relieved as their counsel after attempts to settle the matter were fruitless.In support of the motion, the petitioner asserts that the entire recovery is to be allocated to personal injury inasmuch as the decedent died of causes completely unrelated to the alleged negligence which triggered the personal injury cause of action. Indeed, the action was commenced when the decedent was alive, and petitioner argues no action for wrongful death was or could be asserted. Annexed to the moving papers are the documents related to the plenary action, including the summons and complaint and most importantly for the purposes of this motion, the bill of particulars which reflects the claim is solely for the personal injury the decedent sustained.In opposition to the motion, the brother served papers on the petitioner, however, he failed to file the same with the court. These papers are included as an exhibit contained in petitioner’s reply. Nonetheless, for the purposes of disposition, the court has reviewed the brother’s opposition papers, and upon review, the papers do not rebut the underlying facts, but rather, complain that the settlement agreement in the probate proceeding is “not legally binding due to the fact that [the brother] was not there”. The brother argues that insofar as he had a power of attorney for his mother, he had to approve of the settlement.Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v. Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion (see Zuckerman v. City of New York, 49 NY2d at 557). Nonetheless, summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 [2002]).The decedent died of cancer on December 1, 2011, survived by her mother as her sole distributee. Prior to her demise, the decedent retained the petitioning law firm to prosecute a medical malpractice personal injury cause of action resulting from a gastric perforation she sustained during the administration of chemotherapy. The decedent’s will was admitted to probate after the decedent’s mother, represented by the same attorney that withdrew, entered into a settlement agreement with the petitioner whereby the mother would receive an insurance policy, and the petitioner would be the beneficiary of the entire residuary, in accord with the will.The arguments offered by the son in “opposition” do not raise issues of fact to defeat the motion. There is no basis to set aside the stipulation entered into in the probate proceeding, as there is no allegation the mother did not freely enter into the stipulation or was incompetent to do so, especially in light of the fact that she was represented by counsel. Moreover, the brother, even if he were the agent-in-fact for the mother, was not a necessary party in that proceeding and his approval was not necessary for the stipulation to be binding. Accordingly this decision constitutes the order of the court granting the motion.With respect to the underlying application to lift the restrictions, the New York State Department of Taxation consents to the application and in light of this decision and order, the entire recovery is allocated to the personal injury cause of action.Counsel fees, which are in accord with Judiciary Law 474-a, and disbursements are allowed. The entire net distributable sum shall be paid to the petitioner, as sole residuary beneficiary.The Chief Clerk shall mail a copy of this decision and order to the pro se brother and counsel for petitioner, who is directed to submit a decree in accord with this decision.Submit decree.February 27, 2018ESTATE OF HILDA WALDMAN, Deceased (16/1297/D) — In this contested estate, the decedent’s niece, the nominated successor co-executor under an instrument dated August 18, 2014 (the 2014 instrument), filed an amended cross petition to probate that instrument [File No. 2016-1297/D], renunciations having been filed for the other nominated fiduciaries. The nominated executor of a purported instrument dated November 28, 2007 (the 2007 instrument) also sought to probate that instrument and was awarded preliminary letters [File No. 2016-1297]. All of the interested parties: the decedent’s distributees, a son and the three children of a predeceased son, two of whom are infants by their mother who was appointed guardian of their property by the Surrogate’s Court, Westchester County; the preliminary executor; and, two other grandchildren who are beneficiaries named in the 2007 instrument, entered into a written stipulation, inter alia, consenting to the withdrawal of the proceeding to probate the 2007 instrument with prejudice [File No. 2016-1297]. The written stipulation, which has been “so-ordered” by the court, also provides, inter alia, that: (1) the preliminary executor represents that he has complied with two other “so-ordered” written stipulations and has not encumbered or disposed of any estate assets other than to pay debts of the decedent or administrative expenses; (2) the niece is to file an amended petition to probate the 2014 instrument with consents to be expeditiously supplied by all parties [File No. 2016-1297/D]; (3) upon the niece’s appointment, the letters of the preliminary executor are to be revoked and he is to turn over all assets, files and documents concerning the estate and serve and file an account within 30 days thereof; (4) notwithstanding the dispositive provisions in the 2014 instrument, all of the decedent’s tangible property is to be divided and distributed as the parties shall agree, with the residuary estate to be distributed to the two infant grandchildren, the granddaughter and the son in certain percentages; (5) the son’s distributive share is to be primarily paid in-kind from the interest the decedent held in a real estate partnership; and, (6) all counsel are to serve and file affirmations of services and seek reasonable legal fees and disbursements in proceedings brought pursuant to SCPA 2110. The guardian ad litem appointed for two infant distributees recommends approval of the niece’s amended application and seeks leave to enter into the written stipulation which the court grants. Another cross-petition by the infants’ property guardian seeking to probate the 2014 instrument and appoint the niece as executor was held in abeyance pursuant to the two prior “so-ordered” written stipulations [File No. 2016-1297/F].The court is satisfied that the testator executed the will dated August 18, 2014 in its present form in compliance with the statutory requirements and that, at the time of its execution, the testator was competent to make a will and was free from restraint. Accordingly, as the niece has amended the petition, the will dated August 18, 2014 is entitled to be admitted to probate, subject to the terms of the written stipulation “so-ordered” the date of this decision (see EPTL 3-2.1; SCPA 1408). Pursuant to that stipulation, the proceeding to probate the 2007 instrument is hereby marked “withdrawn with prejudice” [File No. 2016-1297] and the proceedings filed by the preliminary executor seeking the appointment of a testamentary trustee under the 2007 instrument [File No. 2016-1297/A] and the infants’ property guardian seeking to probate the 2014 instrument [File No. 2016-1297/F] are hereby marked “dismissed as academic.” As stipulated, the decree to be entered hereon provides for the revocation of the preliminary letters and directs the preliminary executor to serve and file his account within 30 days of service upon him of the decree.Stipulation “so-ordered” and decree signed.February 26, 2018ESTATE OF JOHN MCDERMOTT, Deceased (16/707/A/B) — Following the last adjourned date of this application by the Department of Social Services of the City of New York (DSS) seeking to compel the co-executors to account, the DSS filed a notice to withdraw the proceeding without prejudice, on notice to the co-executors and their counsel.There being no opposition, the proceeding is marked “withdrawn, without prejudice.”Proceed accordingly.February 28, 2018GUARDIANSHIP OF JOHNNY R., ALSO KNOWN AS JOHNNY G., Pursuant to SCPA Article 17-A (95/A/72G) — This is a proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act seeking to appoint a successor guardian of the respondent’s person and property, an intellectually disabled person.By decree dated July 28, 1995 the court adjudicated the respondent to be a mentally retarded person and appointed the respondent’s mother the guardian of his person and property, and his brother, the petitioner herein, the standby guardian. It is alleged that the mother is now under a disability and she was cited on this application and defaulted. It would appear if the mother’s disability caused her default, she would be ineligible to continue serving as respondent’s guardian.As it appears to be in the best interest of the respondent, and the court finds that the petitioner is qualified to serve as guardian, the application is granted and successor letters of guardianship of the respondent’s person and property shall issue to Luis M., his brother. The letters of guardianship issued to the mother shall be revoked in the decree to be entered hereon.The Chief Clerk shall mail a copy of this decision and the decree to the pro se petitioner.Decree signed.February 27, 2018GUARDIANSHIP OF JOSEPH V.A., Pursuant to SCPA Article 17-A (17/2068) — 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 appeared and the court waived the appearance of the respondent based upon 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 he lacks the capacity to make health care decisions. The court is further satisfied that the petitioners are 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 Miguel C. A. and Lucinda C. A., his parents.The Chief Clerk is directed to mail a copy of this decision and decree to the pro se petitioners.Decree signed.February 26, 2018ESTATE OF LAURA P. CLARK, Deceased (13/1089/B) — In this estate, the New York City Department of Social Services (DSS), an alleged creditor, commenced a proceeding seeking to compel the administrator c.t.a., the decedent’s grandnephew (respondent) to judicially settle his account. Thereupon, by order dated June 19, 2017 (see Matter of Clark, NYLJ, June 28, 2017, at 28 col 5 [Sur Ct, Bronx County 2017]) the court directed the respondent to judicially settle his account within 30 days of the personal service of the order upon him. Upon his failure to do so, DSS commenced this proceeding seeking inter alia, revocation of the letters that issued to the respondent and appointment of the Public Administrator as successor fiduciary. Jurisdiction was obtained over the respondent in this proceeding and he defaulted. On the return date, the Public Administrator appeared and submitted an affirmation declining to accept letters. Upon this record, DSS sought to take and state an account on behalf of the respondent.Upon this state of the record, including the proof that the respondent was personally served with a certified copy of the court’s order compelling him to account, the period of time in which he was to file his account has elapsed and he has failed to comply with the court order, the letters of administration c.t.a. that issued to the respondent are hereby revoked (see SCPA 711 [3]; Matter of Rubinstein, NYLJ, Feb. 4, 2011 at 37, col 5 [Sur Ct, Kings County 2011]). Furthermore, in light of the Public Administrator’s declination to serve as successor fiduciary, the court grants petitioner’s request to take and state an account on the administrators behalf upon the commencement of the proper proceeding thereof (see SCPA 2205).Notwithstanding the default of the respondent, the order granting this application shall be settled on him.Settle order.February 28, 2018ESTATE OF LAVONIA PARKS, ALSO KNOWN AS, LEVONIA L. PARKS, Deceased (10/2746/A) — The administrator, the decedent’s daughter, seeks to remove the restrictions on her limited letters testamentary so that she may receive and distribute the proceeds from the settlement of a personal injury cause of action.The decedent sustained injuries as a result of alleged medical malpractice and died intestate on November 17, 2015. In addition to the petitioner, the decedent’s other distributees are three other children. The New York State Department of Taxation and Finance and two of the decedent’s other children consent to the application and the other distributee was served with citation and defaulted. Citation also issued to Centers for Medicare and Medicaid Services, seeking to disallow any claims against the estate and they defaulted.Disbursements, and counsel fees which are pursuant to Judiciary Law §474-a, are allowed. The sum of $1,665 is to be paid to Carl Palmer in reimbursement of the decedent’s funeral expenses. As requested, statutory commissions are to be paid to the trustee of the supplemental needs trust created for the petitioner. The sum of $3,283.89 is to be paid to New York State Department of Social Services/HRA in payment of its Medicaid claim. Notwithstanding the default of Medicare/MSPRC in this proceeding, the petitioner proceeds at her own risk with regards to any future claim by it (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 decedent’s distributees in equal shares, with the petitioner’s share to be paid to the trustee of the supplemental needs trust created for her benefit.Submit decree.March 1, 2018ESTATE OF MARIE PEPE, Deceased (16/2139) — In this probate proceeding by a son of the decedent who is the nominated executor, Michael, amended verified objections were filed and served by three other children, the decedent’s only other distributees, including a son, Steven, who is the nominated successor executor under the propounded instrument dated May 5, 1993. On a court conference date following the filing of the original objections, the parties entered into a written stipulation which provides that after the filing of a reply to the amended objections, the matter is to be treated as a motion for summary judgment on the papers, with Michael to serve and file an answer/reply by December 15, 2017. That time has now passed, without any answer/reply being served and filed.The decedent died on May 27, 2014. Her distributees are four children, including the proponent and objectant, all of whom are equal beneficiaries and equal specific devisees under the propounded instrument. The petition alleges there are estate assets consisting of a two-family home in the Bronx valued at $400,000, rents of $26,000 and personal property of $18,000. Annexed to the amended verified objections is a cross petition for probate, which is not yet filed and served, seeking to appoint Steven as executor and alleging the realty value is $675,000, the rents are $72,000 and the personal property is $18,000.In response to Michael’s petition for probate, the verified objections by the other children do not interpose any objection to the instrument itself as executed, other than to challenge the appointment of Michael as executor. They allege that since the date of the decedent’s death Michael delayed filing the will for probate and either occupied the entire property or a portion thereof without paying use and occupancy, has collected rents, refused them access and refused to sell the premises or buy them out. They note that they offered to purchase Michael’s 25 percent interest at fair market value, or accept 75 percent of fair market value from him for their interests, or sell the premises and divide the proceeds pro rata; however, Michael refused and continues to reside at the premises while paying nothing and collecting rents. The objectants also contend that Michael commenced an eviction proceeding against a paying tenant and, as a result, that tenant ceased paying rent; however, the eviction proceeding is stalled as there is no fiduciary for the estate. The objectants urge that Michael must be disqualified from serving as fiduciary as he has a conflict of interest and created extreme hostility as he will neither pay for his use and occupancy nor sell the premises and he is wasting assets and collecting what little rent remains for himself. Alternatively they request that if Michael is appointed fiduciary the court should, inter alia, require him to account for his use and occupancy from the date of the decedent’s death and compel him to sell the premises and distribute the proceeds.In further support of the motion for summary judgment, Steven submits an affidavit explaining that the two-family home has three income-rentable spaces/apartments: (1) Michael has a three-bedroom apartment with a total of six rooms but pays no use and occupancy though the rental value would be $1,600 to $1,800 per month; (2) there is a two-bedroom apartment with five rooms that rented for $1,400 since October 2013 with the tenant paying the heat and hot water, but Michael brought an eviction proceeding against the tenant who, thereafter, stopped paying in August 2017; and, (3) there is a one-bedroom basement with a total of three rooms and that tenant pays $850 a month including electric. According to Steven, Michael is unable to obtain a mortgage sufficient to buy out the interests of the other siblings and, as of the date of decedent’s death, there was a $25,000 mortgage on the premises and taxes of $5,400 per year. He contends that rental income of $72,000 per year is being lost, attempts to settle or resolve the mater have failed, and Michael is self dealing at the expense of the other devisees who have no access to or income from the property. Annexed to a memorandum of law in support of the verified amended objections and motion are, inter alia, a cross petition for probate by Steven the nominated successor executor; a February 10, 1986 deed to the realty at issue to the decedent alone; a January 14, 2016 letter from counsel for Steven requesting a meeting with Michael to amicably resolve all issues; and, a realty appraisal performed November 9, 2017.Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v. Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (see Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 [1968]). The papers submitted in the summary judgment application are scrutinized in a light most favorable to the party opposing the motion (see F. Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 [1st Dept 2002]).The decedent’s choice to serve as executor will not be nullified unless a statutory ground for removal is clearly established (see SCPA 711; Matter of Duke, 87 NY2d 465, 473 [1996]; Matter of Leland, 219 NY 387 [1916]). The grounds set forth in SCPA 707 govern ineligibility to receive letters and is exclusive (see e.g. Matter of Stewart, NYLJ, Oct 1, 2003 at 22, col 3 [Sur Ct, Kings County 2003]), and the grounds in SCPA 711 serve as the only basis for removal (see e.g. Matter of Wenig, 31 Misc 2d 903 [Sur Ct, NY County 1961]). Notwithstanding the deference given to the testator’s choice of a fiduciary, the hallmark standard of conduct for a fiduciary is “stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior” (Meinhard v. Salmon, 249 NY 458, 464 [1928]).Here, it appears that the estate requires administration. Based upon the uncontroverted facts alleged in the amended verified objections which constitute due proof thereof (see SCPA 509), and based on the uncontroverted facts set forth in Steven’s affidavit in support of summary judgment, the objectants have met their burden of proof of showing that Michael has been wasting and improperly applying the assets of the estate and is otherwise improvidently managing or injuring the property, demonstrating that he lacks the qualifications required of a fiduciary due to improvidence and a want of understanding (see SCPA 707 [1] [e]; see also SCPA 711 [8]; Meinhard v. Salmon, 249 NY at 464).As to the objectants’ insistence that the realty should have been sold and/or must be sold, the court notes that since the decedent devised the realty to the four children, upon the admission of the will to probate, title to the realty vests in them as tenants in common dating back death, subject to divestment only pursuant to court order to pay estate debts (see Waxson Realty Corp. v. Rothschild, 255 NY 332 [1931]; Matter of Seviroli, 31 AD3d 452 [3d Dept 2006]; Matter of Marino, 36 Misc 3d 1215 [A], 2012 NY Slip Op 51327 [U] [Sur Ct, Bronx County 2012]). Thus, under the circumstances presented where a specific devise to tenants in common is at issue, no executor is empowered to manage or sell the realty absent approval of the surrogate, “which shall be granted only where such power is necessary for the purposes set forth in SCPA 1902″ (Matter of Marino, 36 Misc 3d 1215 [A], 2012 NY Slip Op 51327 [U] [Sur Ct, Bronx County 2012], quoting SCPA 1902, citing EPTL 11-1.1 [b] [5] [E]]; see also Matter of Jewett, 145 AD3d 1114 [3d Dept 2016]; Matter of Goodman, 2016 NY Slip Op 50189 [U] [Sur Ct, Queens County 2016]).In any event, based on this record, the objectants’ motion for summary judgment is granted, the objections are sustained and Michael is disqualified from serving as executor, Michael’s petition for letters testamentary is denied, and the cross petition by Steven annexed to his papers shall be filed and jurisdiction shall be obtained over all interested parties. In view of this determination, the court need not address the alternative requests for relief raised in the motion.This decision constitutes the order of the court.March 1, 2018ESTATE OF STEVEN A. HARRIS, Deceased (17/1035) — In this contested probate proceeding the decedent’s spouse moves to quash a “subpoena” and the preliminary executor opposes that motion and cross moves to impose sanctions, asserting that the motion to quash is frivolous. Chase Bank (Chase), the entity from which documents are being sought, was served with the motion and defaulted.The decedent died on April 24, 2017 survived by the spouse and two daughters; one daughter is the preliminary executor and the other daughter, along with the spouse, are objectants in the probate proceeding. The genesis of the motion is a letter dated December 11, 2017 sent to Chase, by an associate of the firm representing the preliminary executor, seeking, inter alia, documents related to joint accounts held by the decedent and the spouse dating from 2012 until the present (the “letter request”). The letter request indicates that the documents are sought to assist the preliminary executor in the administration of the estate and a copy of her preliminary letters testamentary are attached to the letter. Notably, there is no indication that the spouse or her attorney were copied on the letter, though counsel for the preliminary executor was well aware that the spouse was represented by counsel.Chase contacted the spouse initially by phone and subsequently by written correspondence dated December 15, 2017, informing her about the letter request and advising that the documents would be turned over to the preliminary executor unless Chase received a court order directing them not to do so. Thereafter the spouse and her attorney received letters from Chase’s legal department, dated December 27, 2017 and January 2, 2018, respectively, informing them of Chase’s obligation to turn over the documents absent a court order. Although the letters from Chase refer to a subpoena, it appears that no subpoena ever issued, only the letter request by counsel for the preliminary executor. The documents sought pursuant to the letter request are now the subject of an SCPA 2103 proceeding commenced by the preliminary executor, currently returnable on March 6, 2018.In support of the motion the attorney for the spouse states that the spouse informed him that a subpoena had been issued to Chase, and based upon the correspondence he and his client received from Chase he believed that in fact, a subpoena had issued. He made numerous attempts to resolve this matter informally with counsel for the preliminary executor, as attached documents reveal, but given Chase’s position, and the fruitless efforts to resolve this matter informally, the motion was necessary. Finally, he argues that the documents requested pursuant to the letter request are not relevant to the probate proceeding as they concern joint assets which, ultimately, may be deemed non-estate assets, and any information concerning joint assets is obtainable in the SCPA 2103 proceeding, after jurisdiction is complete in the probate proceeding.In opposition to the motion and in support of the cross motion, counsel for the preliminary executor acknowledges that an associate from his firm sent the letter to Chase, but insists that the letter was sent “wholly outside the context of this and any other legal proceeding.” He argues, inter alia, that as no subpoena ever issued and counsel for the spouse did not attempt to resolve this issue informally prior to filing the motion and then refused to withdraw it, the motion is frivolous and sanctionable. Noting that the documents that were the subject of the letter request are relevant and currently are being sought through the commencement of an SCPA 2103 proceeding, he argues that the motion should be denied as moot and sanctions imposed.Based upon the undisputed documents submitted in support of the motion, it is clear that Chase intended to turn over the requested documents unless prohibited from doing so by court order. Morever, the statement that the documents requested in the letter request were somehow “not related to this or any other proceeding” is incredulous and wholly belied by the content of that letter. As counsel for the preliminary executor acknowledges, the same documents are now being sought in the SCPA 2103 discovery proceeding.Under the circumstances, the court finds that these documents should have been sought through proper disclosure mechanisms in an appropriate proceeding, and not in the ex parte manner chosen. Given Chase’s position, the spouse’s motion seeking, in effect to restrain the release of any documents requested pursuant to the letter request is granted, and the cross motion is denied.Although jurisdiction is not complete in the probate proceeding, the SCPA 2103 proceeding may move forward as the relief sought therein would not prejudice the rights of the parties over whom the court has not yet obtained jurisdiction in the probate proceeding. Accordingly, this decision constitutes the order of the court granting the motion to the extent of staying any further discovery of all parties and non-parties with respect to the issues that are the subject of both the letter request and the SCPA 2103 proceeding pending a determination of any issues raised in that discovery proceeding and denying the cross motion in all respects. Chase is hereby directed not to turn over any documents sought in the December 11, 2107 letter, until a further order of the court. Movant shall serve a copy of this order with Notice of Entry upon Chase.Proceed accordingly.February 28, 2018
