In this application by a co-administrator, the decedent’s son, to revoke the letters of administration that issued to the other co-administrator, the decedent’s daughter and only other distributee, the parties appeared and entered into a stipulation pursuant to which the daughter was to serve and file objections to the application by August 31, 2018. The son was to serve and file his reply by September 7, 2018, and the matter would then be marked “submitted” and treated as a summary judgment motion. The daughter failed to file objections to date.The decedent died intestate on October 10, 2013 survived by the son and daughter as her only distributees. The primary estate asset consists of realty. In the son’s initial proceeding seeking letters of administration, the daughter filed objections. Thereafter, by stipulation, the parties agreed to serve as co-administrators and letters of administration issued to both subject to SCPA 805 (3) restrictions with respect to the decedent’s real property.In support of his application the son alleges, inter alia, that the behavior of the daughter is indicative of a person with”…want of understanding…” as to her role as a fiduciary or a person unfit for execution of the duties and obligations of an administrator and is [violative] of SCPA §711 (2) and (8). Since January 10, 2018 he has made attempts to communicate with the daughter in relation to choosing an appraiser for purposes of selling the decedent’s real estate and she has failed to cooperate. Namely, the petitioner alleges that on January 10, 2018 he sent the respondent a list of reputable appraisers and invited her to also suggest appraisers; she stated she didn’t agree with the appraisers selected and was to notify petitioner within fourteen (14) days of that correspondence of how she wanted to proceed, but failed to do so. Thereafter, the respondent contacted petitioner’s attorney and informed her that she relieved her counsel and requested additional information about the appraisers, which was provided to her. Respondent then indicated to petitioner that she did not receive the decree appointing them as co-administrators and when she received the decree she would have a conversation about the possibility of an appraisal for the property. The petitioner states that since the parties had agreed to act as co-administrators on December 12, 2017 he did not believe it was necessary to wait for the issuance of the decree to have an appraisal and the appraisal was conducted on March 12, 2018. The decree and letters of administration were then issued by this court on March 27, 2018. On April 6, 2018 petitioner sent respondent a copy of the decree and letters of administration with a list of three real estate brokers and requested respondent make a selection or suggest one of her own for purposes of listing the premises on the market for sale. The respondent did not respond. On May 23, 2018 petitioner sent respondent another letter requesting her cooperation to which respondent replied and stated that she would contact petitioner’s counsel no later than June 22, 2018, however, she has not replied to date or cooperated with respect to the realty, triggering this application.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 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 makes 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 F. Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 [1st Dept 2002]).SCPA 711 sets forth specific grounds which may form a basis for a court to revoke letters. If the petitioner establishes one of the statutory grounds for removal, a court still has broad discretion to determine what the appropriate relief would be, including dismissing the petition should it appear to be in the best interest of the estate (see Turano & Radigan, New York State Administration, at 527, citing to Stolz v. New York Central R R Co. 7 NY2d 269 [1959] rearg denied, 7 NY2d 995 [1960]. Accordingly, removal is left to the sound discretion of the Surrogate, should be exercised sparingly and even in the face of misconduct by a fiduciary, only when that misconduct endangers the estate (see Matter of Duke, 87 NY2d at 473 [1996]; Matter of Farber, 98 AD2d 720 [2d Dept 1983]; Matter of Kopet, 2016 NY Slip Op 3 32052 [U]) [Sur Ct, Nassau County 2016]; Matter of Israel, 64 Misc2d 10135, 1043, [Sur Ct, Nassau County 1970]).The petitioner’s uncontroverted allegations constitute the basis for granting the application to wit, the respondent’s refusal to take the necessary steps to collect and distribute the assets of the estate, coupled with her failure to state any reason why the assets should be retained, reflects a want of understanding of her fiduciary duties and warrants the revocation of her letters of administration (SCPA 711 (2); see Matter of Diamond, NYLJ, Nov. 8, 1991 at 28, col. 1 [Sur Ct, Bronx County 1991]).Accordingly, this decision constitutes the order of the court granting the amended application. Notwithstanding the default of the daughter, the decree to be entered herein revoking the letters of co-administration that issued to the daughter shall be settled upon her.Settle decree.
