In this miscellaneous proceeding, commenced by order to show cause, the petitioner, Norma Alzapiede, the decedent’s cousin, who filed objections in the probate proceeding, seeks to enforce a stipulation dated September 14, 2016. Specifically, the petitioner seeks, inter alia, entry of judgment in the amount of $8,446.00 and pre-judgment interest from June 1, 2018, statutory interest at nine percent (9 percent) until the amount is paid in full, as well as attorney’s fees and costs in relation to filing this proceeding.The decedent died on August 15, 2013. The nominated executor, John B. Cherico, Esq., (“the executor”) filed a petition to probate a will dated April 10, 2013. Under the instrument, a friend of the deceased, James Donaghey, (“the respondent”) is named sole beneficiary of the estate, which included both personal and real property. On or about October 9, 2014 SCPA 1404 examinations were conducted and objections to the will were filed by the petitioner thereafter.An SCPA 1411 citation issued and the parties appeared for a conference on September 14, 2017 and entered into a stipulation settling the matter, which provides, inter alia, that (1) the objections filed by the petitioner were to be withdrawn, (2) letters testamentary were to issue to the executor subject to the Settlement Agreement dated September 14, 2016, and (3) the executor was to make payments as follows: $125,000.00 payable to the petitioner from the estate account within five (5) days of issuance of the letters testamentary, with the remainder to be paid from the estate account to the petitioner and the respondent within ten (10) days thereafter. On October 17, 2017 the matter was marked “probate clerk” as an uncontested proceeding subject to the terms of the stipulation (“the stipulation”) and type written settlement agreement dated September 14, 2017 and September 14, 2016, respectively.In support of the application the petitioner indicates the parties entered into an agreement executed in or about September, 2016 (also referred to as “the settlement agreement”) after a mediation before Hon. Anthony A. Scarpino (“the mediator”) and provides a copy of that agreement. The petitioner alleges that the respondent partially performed under the terms of the settlement agreement noting that under Article IV of the agreement she was to receive her percentage share of the estate within thirty days following the closing and payment of all estate expenses unless the time period was extended by the mediator. Thereafter, the parties entered into the stipulation dated September 14, 2017, which revised the time by which payments were to be made to her and pursuant that stipulation, the petitioner withdrew her objections to the probate of the decedent’s will. Under the stipulation, the executor was to pay the petitioner $125,000.00 within five (5) days of the issuance of letters testamentary and the remainder owed to her was to be paid by the respondent within ten (10) days thereafter.In or about May 2018, petitioner received a check for $125,000.00, but states the payment was not timely pursuant to the settlement agreement and stipulation. The petitioner alleges, under the terms of the settlement, the respondent was to pay petitioner an additional $88,446.00. On or about June 1, 2018 the respondent made a partial payment of $80,000.00 which was also not timely pursuant to the settlement and stipulation. The petitioner states she has made numerous demands for payment of the balance and the respondent has conceded that he owes the total amount of $88,446.00. In or about August 2018, the respondent stated he would not make payment at that time; and as such, the petitioner argues that the respondent is in breach of the settlement.In opposition to the order to show cause, the respondent states that Article IV of the settlement agreement provides that the petitioner’s percentage of the estate “will be disbursed within thirty (30) days following the Closing (and payment of all Estate expenses). He states that the term “closing” refers to the sale of the decedent’s home which took place on or about April 2016. Thereafter he gave the executor a check for $264,000.00 which was then issued to petitioner’s counsel.On or about January 2018 and May 2018, the executor issued checks to the petitioner in the amount of $111,000.00 and $17,031.97, respectively, leaving the estate account with a zero balance. The respondent then attempted to calculate the remainder owed to the petitioner but was informed by the executor that the estate had outstanding assets, i.e. fifty-two (52) shares of IBM stock, totaling $6,240.00, which the executor advises are in the process of being liquidated and being deposited to the estate account.Additionally, the respondent was also advised of possible outstanding estate liabilities, including legal fees of the mediator. The respondent states he advised the petitioner that the amount due to her was likely $88,000.00, but never conceded an exact amount. He urges that pursuant to the settlement agreement all the estate expenses were to be paid prior to the distribution of the estate assets to the parties and not only are the total estate assets unknown at this time, but all estate expenses have not been paid. Accordingly, distribution is not required at this time and he is not in breach of the agreement.Furthermore, the agreement states that both the estate and the respondent are responsible for payment of expenses and the estate may have enough assets to satisfy any amount due to the petitioner and therefore no amount will be due from him. He further alleges that he is unable to determine what is due to the petitioner because the executor has failed to transfer assets to the estate account and negotiate liabilities. He requests that the petitioner’s relief be denied and seeks a judgment against petitioner for reasonable attorney’s fees associated with this matter.In her reply, the petitioner states that the monies owed pursuant to the settlement agreement were never disputed prior to the receipt of the “Opposition to Petitioner’s Order to Show Cause and Counterclaim” submitted by the respondent. She argues that the respondent did not submit an answer to the petition or deny any of the allegations and therefore, the court should accept the allegations as undisputed. Further, the petitioner notes that the executor did not file papers to dispute or clarify the issues presented. She alleges that the respondent never claimed that payment was not triggered pursuant to the settlement agreement and the first time it was alleged that all estate expenses were not paid pursuant to the settlement agreement was in opposition to the pending petition. Moreover, given the fact that the executor issued a check to the petitioner in May 2018, leaving no estate balance, the executor did not believe there were unpaid estate expenses; and at that time, the respondent notified the parties of the additional estate assets, i.e. the IBM stock, however, he did not make any mention of additional estate expenses.The petitioner urges that in communications on or about July 2018, when petitioner inquired about the balance due in the amount of $8,800.00, the respondent indicated that counsel was going to prepare the paperwork to liquidate the stocks, but did not dispute the amount owed. The petitioner alleges that on or about September, 2018 the respondent intimated that the paperwork was complete and payment would be made to the petitioner in the upcoming weeks, however payment was not received.Petitioner states the respondent’s argument that payment is not due under Article IV of the settlement agreement is flawed because; (1) this argument was never asserted prior to the commencement of this proceeding; (2) the executor distributed all estate assets on or about May 2018, and the respondent thereafter discovered additional assets and unilaterally decided that the petitioner should wait for receipt of the IBM proceeds, notwithstanding the fact that this is not a term of the settlement agreement; and (3) the reference to payment of all estate expenses [in the settlement agreement] refers to the closing on real property and the petitioner argues she has never been provided with proof of the alleged estate expenses, which as the respondent admits can be paid by the liquidation of the IBM stocks.Stipulations of settlement are favored by the courts and not lightly cast aside (Hallock v. State of New York, 64 NY2d 224 [1984) quoting Matter of Galasso, 35 NY2d 319, 321 [1974]). Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce and all such stipulations not unreasonable, not against good morals or sound public policy, have been and will be enforced (Tepper v. Tannenbaum, 83 AD2d 541 [1st Dept 1981] quoting Matter of New York, Lackawanna and Western R.R., 249 App Div 764 [2nd Dept 1936]).A review of the record, including the stipulation of the parties and the settlement agreement indicates the petitioner is entitled to forty percent (40 percent) of the net estate and the respondent is entitled to sixty percent (60 percent) of the net estate; however, there has not been a determination of the net assets and expenses of the estate. The settlement agreement is based on an “approximate” value of the gross and net estate. Contrary to petitioner’s argument, the settlement agreement clearly indicates that “estate expenses” includes, costs and expenses of the entire estate along with closing costs for the sale of the real property. As such, it is unclear whether there are additional estate assets to be collected and whether there are outstanding estate expenses to be paid, which is needed to determine the date by which payment was due and the exact amount owed to petitioner, if any.Accordingly, this decision constitutes the order of the court directing the executor to file an account pursuant to SCPA 2205, a petition for its judicial settlement, and all of the papers required to obtain the issuance of a citation in the accounting proceeding within 60 days of personal service upon the executor of a certified copy of the order to be entered hereon. The executor shall then, without delay, cause the citation to be served upon all parties required to be served in an accounting proceeding pursuant to SCPA 2210 and appear before the court from time to time as required for the purpose of the settlement of his account.The Chief Clerk is directed to mail a copy of this decision and order to all counsel for parties.Proceed accordingly.
