The following papers were considered in determining this motion for summary judgment: Notice of Motion, Affirmation and Affidavit in support with Exhibits 1, 2, 3, 4 Affidavit and Affirmation in Opposition 5, 6 Affirmation in Reply 7 DECISION In this contested administration proceeding, Maria Caras (Maria) moves for summary judgment, seeking an order of the court dismissing the objections to her petition for issuance of letters of administrator in the estate of Craig John Caras, a/k/a Craig Caras (decedent). Background The decedent died intestate on November 2, 2017, in an automobile accident in which Oksana Caras (Oksana), his spouse, was the driver. He was survived by Oksana and Maria, his adult daughter of a prior marriage. Maria filed a petition for letters of administration in decedent’s estate on February 16, 2018, as amended on June 21, 2018. Oksana filed verified objections on April 5, 2018 and July 13, 2018, respectively, and on June 29, 2018, she also cross-petitioned for issuance of letters of administration. Maria also filed a petition for letters of limited administration on August 23, 3018, for the purpose of commencing a wrongful death action and annulment proceedings against Oksana. The Instant Motion On October 2, 2018, Maria filed the instant motion for summary judgment, seeking the dismissal of Oksana’s objections to her petition for full letter of administration as well as dismissal of Oksana’s cross-petition for letters of administration. A 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). Maria’s moving papers include an affirmation of counsel Tali Sehati, Maria’s affidavit in support of the motion for summary judgment, and Exhibits “A” through Y.” Oksana has submitted an affidavit in opposition to the within motion, asserting as she does in her objections, that as the decedent’s surviving spouse, she has statutory priority for issuance of letters of administration pursuant to SCPA 1001(1). She also submits an affirmation of her counsel John Macron in opposition to the instant motion. Maria asserts that Oksana is disqualified from serving as fiduciary and that Maria, as decedent’s daughter, is entitled to letters. SCPA 1001.1 provides in part Letters of administration must be granted to the persons who are distributees of an intestate and who are eligible and qualify, in the following order (a) the surviving spouse; (b) the children; (c) the grandchildren; (d) the father or mother; (e) the brothers or sisters; (f) any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the larger share in the estate…(emphasis added) SCPA 1001.1(a) is not permissive and letters of administration must be granted to the petitioner as the surviving spouse of the decedent unless the objectant can show that the petitioner is unfit to be fiduciary for the reasons stated in SCPA 707 or 711. See Matter of Salvan, 132 A.D. 2d 662 (2nd Dep’t 1987). Through her attorney’s affirmation, Maria acknowledges that Oksana has statutory priority for issuance of letters (characterized as “nominally first in priority,” Sehati Affirmation 40), but claims that Oksana is disqualified from serving in that Oksana does not intend to bring a conscious pain and suffering/wrongful death action against herself, that she is a non-domiciliary alien and that the pronounced friction between the parties would interfere with the proper administration of the estate. Maria argues that Oksana is a non-domiciliary alien, asserting that she entered the country as a “temporary visitor” and that she is a Ukraine citizen. According to both parties’ filings, Oksana resides in Brooklyn, and Maria cites to no authority in support of the proposition that a domiciliary alien is ineligible to serve as fiduciary. The case Maria relies upon, In re Ajala, 2010 NYLJ LEXIS 1312 (Sur. Ct. New York Co. 2010), involves a non-domiciliary alien who resides in Nigeria, not the State of New York. Furthermore, SCPA 707.1(e) provides: Letters may issue to a natural person or to a person authorized by law to be fiduciary except as follows: 1. Persons ineligible: (a) an infant; (b) an incompetent; (c) a non-domiciliary alien…. (d) a felon; (e) one who 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. Maria has failed to make a prima facie showing that Oksana is disqualified under any of the factors above. Maria also claims that Oksana “having caused the death of the decedent, is not in a position to bring a personal injury and/or wrongful death action against herself.” (Sehati Affirmation, 36) This issue has already been resolved by this court’s determination of Maria’s separate petition for limited letters of administration to pursue a wrongful death action and marriage annulment proceeding. In its decision dated October 10, 2018, this court granted Maria limited letters of administration for the purpose of commencing and prosecuting a wrongful death action. Furthermore, Maria has already commenced an annulment proceeding in Supreme Court, Kings County (Macron Affirmation, 50). Maria’s failure to include the pursuit of decedent’s conscious pain and suffering claims in her petition for limited letters may not now serve as the basis for an award of summary judgment on her petition for full administration. Maria has failed to make a prima facie showing that there are no triable issues of fact with respect to Oksana’s eligibility under SCPA 707 or 711 to serve as the decedent’s fiduciary. Accordingly, the motion for summary judgment dismissing Oksana’s objections to Maria’s petition for letters of administration is denied in its entirety. Dated: October 25, 2019 Brooklyn, New York
