DECISION/ORDER In this miscellaneous proceeding, petitioner, Kevin T. Mahoney (“Kevin”), seeks to have his sister, Ellen Grace Mahoney (“Ellen”), removed as administratrix c.t.a. of decedent’s estate. Petitioner also requests, inter alia, the issuance of successor letters of administration c.t.a. to him. Petitioner also requested an order directing Ellen to account for her tenure as fiduciary; as discussed more fully below, Ellen was directed to account in a decision and order dated October 24, 2018 within thirty days of such decision and order. Ellen has failed to account.Jurisdiction has been obtained over all interested parties; Kevin and Ellen are the only persons interested in this proceeding and in decedent’s estate. A verified affirmation in opposition to the requested relief was filed by counsel for Ellen.BackgroundThe record reflects that the decedent died on April 13, 2016; the will was filed with the court on November 10, 2016; and the petition by Ellen for probate of decedent’s last will and testament and the issuance of letters of administration c.t.a. was filed on February 17, 2017, over ten months after decedent’s death. Letters of administration c.t.a. issued to Ellen on March 6, 2017 pursuant to decree of that date, after the filing of the certificates of death for the nominated executor and successor executor.Kevin thereafter filed the instant proceeding, alleging that Ellen has done little, if anything, to marshal decedent’s assets and perform other actions required of her as fiduciary. Specifically, Kevin alleged that Ellen has done nothing to market and sell decedent’s home, in which Ellen resides, despite decedent having died over two years ago and Ellen having been appointed over one year ago.Prior Decisions and Orders, Motion to Be RelievedPursuant to decision and order dated April 5, 2018, a hearing on Ellen’s “fitness to continue serving as fiduciary of the estate” was scheduled for May 22, 2018. On May 22, 2018, counsel for petitioner filed a motion to be relieved as counsel. On August 28, 2018, the return date of that motion, Ellen appeared and agreed to her counsel’s withdrawal on the record. Pursuant to decision and order dated September 5, 2018, counsel’s motion was granted, and the matter was adjourned until October 16. The September 5, 2018 decision and order states, in relevant part:Prior thereto, respondent fiduciary, Ellen Grace Mahoney, shall have instructed her new attorney(s) to appear and file a notice of appearance herein or she shall advise the court and opposing counsel, in writing, that she will be representing herself.Neither of these occurred.Pursuant to decision and order dated October 24, 2018, Ellen Grace Mahoney was directed to appear for a hearing on December 4, 2018 at 11:00 to determine her fitness to continue serving as fiduciary of the estate. In addition, and as noted above, Ellen was directed to account within thirty days of such order; i.e., prior to her fitness hearing. The October 24, 2018 decision and order specifically provided, in part:ORDERED, that the failure of Ellen Grace Mahoney to timely file an account, and petition for judicial settlement thereof, and cause to issue citation thereon will result in the revocation of the letters of administration c.t.a. issued to her and the appointment of petitioner, Kevin T. Mahoney, as successor administrator, c.t.a.ConclusionA fiduciary may be removed without a hearing where, inter alia, the fiduciary’s conduct is established by undisputed facts or concessions (see, Matter of Duke, 87 NY2d 465). In this regard, a petition, unless denied by an answer, objection or other proof, is deemed “due proof of the facts therein stated” (see, SCPA §509). As noted above, respondent Ellen Grace Mahoney was given an opportunity to defend her actions as fiduciary, but she failed to appear for her fitness hearing. Although her former counsel filed an “Affirmation” in opposition to the requested relief, the affirmation failed to address the actions, if any, Ellen has taken as fiduciary of decedent’s estate.In addition to failing to appear at the hearing scheduled to determine her fitness to continue to serve as fiduciary, Ellen has not filed her accounting.The record reflects that petitioner is the only other person interested in decedent’s estate and is, therefore, the person to whom successor letters of administration c.t.a. should issue.Accordingly, successor letters of administration c.t.a. shall issue to Kevin T. Mahoney upon qualification and without bond. The letters of administration c.t.a. previously issued to Ellen Grace Mahoney are hereby revoked.Decree signed.
