The following papers were considered in determining this motion for summary judgment:Notice of Motion and Affidavit in Support, with Exhibits 1, 2Affirmation in Opposition with Exhibits 3Reply Affirmation in Support of Motion, with Exhibits 4DECISION and ORDER In this contested miscellaneous proceeding, Morton Apfeldorf (Morton) moves for summary judgment granting his petition to compel the release of estate assets pursuant to SCPA §2102(4). Opposition to the instant motion is interposed by Meyer Apfeldorf (Meyer), the objectant in the underlying proceeding.Pearl Apfeldorf (the decedent) died on June 7, 2013, survived by Morton and Meyer, her sole heirs. On April 30, 2014, the decedent’s last will and testament dated August 31, 1999 (the will), was admitted to probate, and letters testamentary were issued to Morton and Meyer as co-executors. In addition to several modest monetary bequests to other family members, the decedent’s will bequeaths her residuary estate in equal shares to Morton and Meyer, with Meyer’s share held in trust pursuant to Articles SIXTH and SEVENTH.On October 20, 2015, Morton filed a petition pursuant to SCPA §2102(4), seeking to compel Meyer to distribute the assets of the decedent’s estate. Morton asserts that certain real property located at 1232 East 12th Street, Brooklyn, New York, was sold on April 20, 2015, for $1,170,000.00. He also asserts that the estate has outstanding expenses, including legal fees and the monetary bequests, of less than $100,000.00. Morton asserts that the proceeds of sale of the real property are deposited into an estate account with Sanford Bernstein and Co., and that distribution thereof requires consent of both co-executors. Morton asserts, inter alia, that Meyer has repeatedly refused his requests for distribution of any of the estate funds, and seeks an order of the court directing Meyer i) to authorize payment of legal fees, the monetary bequests and outstanding Article 81 guardian fees, ii) to distribute the estate assets while retaining a reserve of $100,000.00, iii) to render an account, and iv) awarding Morton’s legal fees and damages in connection with the instant petition.On April 13, 2016, Meyer filed a verified answer, asserting general denials and affirmative defenses. Meyer asserts that the legacies under the will have been satisfied, and that Morton has refused to cooperate in resolving the claims of creditors of the estate. Meyer asserts that he is not required to make advance distributions of estate assets absent a showing by Morton of grave financial need and evidence of the estate’s solvency after such distributions. Finally, Meyer asserts that the provisions of SCPA §2102(4) do not apply to Morton as a residuary beneficiary.The Instant MotionDespite the parties’ extensive attempts to resolve the issues herein, they were unable to reach a settlement. On July 18, 2018, Morton filed the instant motion seeking an order of the court directing Meyer to distribute his share of the estate’s liquid assets. Morton asserts that the estate account holds $1,141,242.00, and that no claims have been asserted against the estate. Morton further asserts that he suffers from Parkinson’s disease and requires a distribution in order to secure his financial situation.In opposition, Meyer asserts that administration of the decedent’s estate remains incomplete and distribution is premature. He asserts that there remain outstanding claims and liabilities, and that Morton himself is liable to the estate for return of certain sums asserted to have been borrowed, or wrongfully taken, from the decedent during her lifetime. He asserts that there is an ongoing investigation by the Internal Revenue Service into the decedent’s offshore assets and income, and that the exposure of the estate is unknown. Meyer asserts that Morton has failed to marshal assets belonging to the decedent, including assets located in Israel as well as unclaimed funds deposited with the New York State Comptroller, and that in fact Morton has hindered his efforts to conclude administration of the estate. Meyer asserts that the estate is not in a position to have the entirety of its liquid assets distributed, and further that Morton has not demonstrated that he requires an immediate distribution.In reply, counsel for Morton disputes Meyer’s claims that Morton is indebted to the decedent’s estate, asserting that any such claims are barred by the statute of limitations. He asserts that Meyer’s stated concern regarding potential tax liabilities are insufficient to prevent a distribution of estate assets. Finally, he asserts that Meyer proffers no evidence to support his statement that the estate must still satisfy outstanding claims and liabilities. He asserts that any claims that Morton has been less than diligent in marshaling Israeli assets will be addressed by the Israeli probate court.A court will grant a motion for summary judgment pursuant to CPLR 3212(b), if “upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party.” The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to demonstrate the absence of material issues of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Upon such a showing, 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 requiring a trial, and thus requiring the denial of the motion. Zuckerman v. New York, 49 N.Y.2d 557, 562 (1980).Discussion“Normally legacies are payable seven months after issuance of letters testamentary unless otherwise directed by the testator or required by the circumstances of the estate.” Matter of Usdan, 125 Misc. 2d 494, 495 (Surr Ct Nassau County 1984). Thereafter, if a testamentary disposition is not paid upon demand, the beneficiary may commence a proceeding against the executor to compel payment of the disposition. See EPTL 11-1.5[c]; SCPA 2102 [4]. The decision to compel payment of a legacy, including a residuary legacy, before a fiduciary has accounted lies within this court’s discretion. See Matter of Corbin, N.Y. Misc. LEXIS 4056 (Surr Ct New York County 2017); Matter of Ehmer, 272 A.D.2d 542 (2d Dep’t 2000).It is undisputed that Meyer has refused to distribute any portion of Morton’s legacy under the decedent’s will. Meyer’s refusal to consent to any distribution of the estate’s liquid assets rests primarily on speculation that the estate may yet face tax liabilities of an unknown amount, and on his belief that Morton is indebted to the estate. Otherwise, Meyer proffers no evidence of additional specific, quantified unpaid expenses of administration. The assertion of “unspecified, potential tax liabilities” has been held “insufficient to defeat [an] application to compel payment of [a] legacy.” Ehmert, supra. In fact, the assertion of an estate’s possible insolvency “based on conclusory claims that additional, unspecified, undocumented administration expenses [have] been incurred” has not sufficed to prevent distribution of estate assets. Matter of Corbin, 2019 App. Div. LEXIS 523 (1st Dep’t 2019).While Meyer disputes the necessity of distribution based on Morton’s physical health, the court notes that the decedent died almost six years ago, and no distributions have been made to either residuary legatee. The delays in administration are perhaps complicated by the diversity and location of the decedent’s assets, but resolution has clearly been hampered by ill will between the parties. The court finds that under the circumstances a partial distribution of the residuary estate is appropriate if adequate provision is made for refunding in the event the assets remaining are insufficient to cover any federal tax liability. Meyer’s assertion that Morton may owe funds to the estate is susceptible of resolution upon the filing of an accounting herein.Accordingly, there being raised no triable issue of fact as to Morton’s entitlement to distribution of his legacy, his motion for partial summary judgment granted, and it isORDERED, that Meyer is directed to distribute to Morton the sum of $500,000.00 within thirty days of the filing by Morton of a refunding bond.Date: February 20, 2019Brooklyn, New York
