ADDITIONAL INDEX NUMBER2017-3147/AThe following submissions were considered in determining this contested motion and cross-motion:Papers NumberNotice of Motion, Affirmation and Affidavit in Support, and Exhibits 1, 2, 3Notice of Cross-Motion, Affirmation and Affidavit in Opposition to 4, 5The Motion & in Support of Cross-Motion & Supporting Documents Affirmation in Opposition to Cross-Motion, Reply Affirmation & Memo of Law in Support of Petitioner’s Motion 6DECISION In this proceeding, petitioner Maria Geraci (Maria) seeks limited letters of administration, pursuant to SCPA 702(a), for the sole purpose of commencing a discovery and turnover proceeding against her brother Salvatore Geraci (Salvatore), to return certain assets to the estate of their mother, Giovanna Geraci (the decedent). Salvatore filed objections to the petition, claiming that Maria is ineligible to serve as fiduciary. Maria moves for summary judgment to dismiss Salvatore’s objections. Salvatore opposes her motion and cross-moves for summary judgment dismissing Maria’s petition.BackgroundThe decedent died on March 28, 2017, survived by two adult children, petitioner, Maria and objectant, Salvatore. On August 2, 2017, Maria filed for letters of limited administration in her mother’s estate to pursue a turnover proceeding against her brother, Salvatore. Maria alleges that decedent’s estate should reflect ownership of two rent-producing parcels of real property located in Brooklyn at 1841 64th Street and 6318 14th Avenue (together the real properties), as well as bank deposits of approximately $700,000. She alleges that there was a family understanding that the real properties, formerly owned by decedent, would be divided equally between the siblings. She further alleges, however, that on August 22, 2016 (seven months prior to decedent’s death), the properties were improperly deeded to Salvatore. Maria also claims that there are bank deposits missing from decedent’s estate.On October 17, 2017, Salvatore filed objections to Maria’s petition for limited letters. Salvatore 2claims petitioner does not qualify under SCPA 707(1)(e) for limited letters because of her dishonesty. Salvatore alleges that Maria’s lack of honesty is evidenced by the fact that she commenced a meritless action in Supreme Court, Kings County, that requests the same relief sought herein.The Instant Motion & Cross-MotionOn May 15, 2018, Maria filed the instant summary judgment motion seeking dismissal of Salvatore’s objections to her petition. Maria asserts that she is entitled to summary judgment because she qualifies to act as a fiduciary and her appointment is integral to a proceeding pursuant to SCPA 2013. Maria argues that she fulfills the requirements of obtaining limited letters, namely that she is a distributee of her mother’s estate and is neither incompetent, under-aged, a non-domiciliary alien or felon. Maria includes a medical report from February 4, 2016 (within six months of the real property transfers), enumerating decedent’s cognitive deficiencies. Maria also attaches documentation that evidences she is unable to obtain additional medical records without the necessary letters of administration. On June 13, 2018, Salvatore opposed Maria’s motion and cross-moved for summary judgment. Objectant makes the following arguments: 1) petitioner relies on outdated information for her assertion that the decedent had $700,000 in certain bank accounts; 2) petitioner’s assertions regarding the family’s “plan” for the real properties (equal distribution between the children) are untrue; 3) the petitioner was estranged from the decedent; 4) the petitioner failed to reveal to this court that she had previously commenced an action in Supreme Court seeking to invalidate the transfer of the real properties; 5) the decedent’s medical records confirm that she had capacity to transfer the real properties; and, 6) petitioner’s “misrepresentations” demonstrate her lack of fitness. Objectant claims that there is no “question of fact” as to Maria’s ineligibility to receive limited letters of administration because she is patently dishonest as evidenced by petitioner’s commencement of a Supreme Court Kings County action on August 1, 2017, immediately prior to the within administration petition, that supposedly seeks the same relief herein.Objectant also argues that petitioner is dishonest because her Supreme Court action, which seeks to reform the deed to the real properties to reflect petitioner and objectant as tenants in common, is meritless. Objectant alleges he was decedent’s sole caretaker and that she transferred the real properties to him free of undue influence or fraud. Objectant provides a medical evaluation of decedent dated May 4, 2016, approximately three and a half months prior to the property transfers, in which a neurologist claims decedent had only mild cognitive deficits and had the capacity to make medical and other decisions. He also claims that there was never a purported “family agreement” that the real properties would pass in two equal shares to petitioner and objectant.Petitioner responds that the Supreme Court action was filed as a “Notice of Pendency” to prevent the objectant from selling the real properties. Petitioner emphasizes that decedent’s pertinent medical and other records are only available to the estate’s fiduciary. Petitioner reiterates that with limited letters of administration she could properly investigate, among other things, the decedent’s mental state at the time of the real property transfers and what, if any, assets should be returned to the estate. Finally, the petitioner argues she has met the standard to receive limited letters, and that she does not have to prove her turnover at this juncture.Summary Judgment StandardsA court will grant a motion for summary judgment pursuant to CPLR 3212(b) when it is clear that there exists no triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307, 311 (1972). The proponent of a motion of summary judgment must make a prima facie showing that she is entitled to summary judgment as a matter of law by presenting sufficient evidence to demonstrate the absence of material issues of fact. CPLR 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 562(1980); Zarr v. Riccio, 180 A.D.2d 734, 735 (2d Dep’t 1992).Upon such a showing, the burden shifts to the party opposing the motion. In order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations that are specific, detailed and substantiated by admissible evidence in the record. General conclusory allegations which contain no specific factual reference cannot defeat a motion for summary judgment. McGahee v. Kennedy, 48 N.Y.2d 832 (1979); Matter of O’Hara, 85 A.D.2d 669, 671 (2d Dep’t 1981).DiscussionSCPA 702(a) provides that letters may be granted to enforce or prosecute a cause of action in favor of the decedent or his fiduciary. SCPA 707.1(e) provides, in part, that a person is ineligible for letters if she “does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.”The burden of proof establishing the ineligibility of one who seeks letters rests upon the party who alleges it. In re Krom, 86 A.D.2d 689, 690 (3d Dep’t 1982). Dishonesty, alleged as a ground for ineligibility, must be proved by more than one isolated incident of wrongdoing, and will not be inferred. Matter of Cohen, 164 Misc 98 (Sur. Ct. Kings Co. 1937), aff’d 254 AD 571 (2d Dep’t 1938), aff’d 278 NY 584 (1938). Improvidence or dishonesty entails showing a tendency or “habit of mind” toward wrongful action. In re Flood’s Will, 236 N.Y. 408 (1923).Courts have interpreted the meaning of “dishonesty” to require evidence of risk of jeopardy to the assets and funds of the decedent’s estate. See Matter of Gottlieb, 75 A.D.3d 99, 107 (1st Dep’t 2010) (“the dishonesty contemplated by the statue must be taken to mean dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of [the fiduciary]“). Where an objectant fails to establish that the funds of the estate are unsafe, objections to a petitioner’s serving as fiduciary will be dismissed.Objectant asserts that petitioner’s dishonesty makes her ineligible for limited letters primarily citing the Supreme Court action initiated by petitioner. Petitioner’s isolated act of commencing a lawsuit to prevent the objectant from selling the real properties while her challenge to the deed transfer is pending, does not constitute a “pattern” or “habit of mind” toward wrongful action. Further, at a conference before a referee in Surrogate’s Court, petitioner represented she would discontinue the Supreme Court action if Salvatore stipulated to allow the limited letters, but he declined to do so. A fiduciary must be appointed to obtain banking and medical records for the purpose of investigating the amount and whereabouts of the decedent’s liquid assets as well as the circumstances of the transfer of the real properties. Petitioner would not be charged with administration of any assets during pendency of discovery proceedings; thus there is no “risk” to the estate. In re Heffernan, 233 A.D. 701 (2d Dep’t 1931). Salvatore has failed to sustain his burden of proof to establish that Maria is ineligible for limited letters. Maria’s motion for summary judgment is granted, Salvatore’s cross-motion is denied and his objections are dismissed. Accordingly, limited letters of administration shall issue to petitioner, Maria Geraci, upon duly qualifying.Settle decree.Dated: October 15, 2018Brooklyn, New York
