Surrogate Mella ESTATE OF SAM ABRAM, Deceased (19-2450) — Before the court on December 6, 2019, in this contested administration proceeding in the estate of Sam Abram, were two motions brought by orders to show cause: (1) a motion by Robert Abram for leave to reargue and renew the applications for the appointment of administrators and, upon reargument, for an order vacating this court’s November 1, 2019 decree appointing cross-petitioners Edward Abram and Carole Abram as co-administrators of the estate of their father; and (2) a motion by Edward Abram for leave to reargue and, upon reargument, for modification of the November 1, 2019 decree to the extent of lifting certain restrictions imposed by this court on the authority of the co-administrators. On the record, on December 6, 2019, the court granted leave to reargue both motions and, upon reargument: a) adhered to its November 1,2019 decision to appoint Edward and Carole as co-administrators; and b) modified the administration decree as requested. Following is the relevant background to these determinations. In a decision delivered on the record from the bench on October 18, 2019, the court appointed Edward and Carole as co-administrators over the objection of their brother Robert, who had petitioned for letters of administration to himself. The court invited all of the parties to file papers in support of their respective positions on the appropriate amount of the bond to be imposed. In their papers, the co-administrators agreed to restraints on the sale of certain estate assets in order to reduce the amount of the bond required to protect the estate (see SCPA 803 [1]; 702). After consideration of the parties’ submissions, and in a written decision dated November 1, 2019, the court imposed a $75,000,000 bond and ordered the issuance of letters of administration to Edward and Carole subject to certain restraints on their authority, until further order of the court. The court was subsequently informed, in filings by the co-administrators, that it had misconstrued some of the information in the bond submissions. In particular, the co-administrators alleged that a prohibition imposed on the sale of the inventory of SIBA Corp., decedent’s jewelry business, and on the sale of real estate known as Fingerlakes Mall, would interfere with the proper administration of the estate and, in any event, was unnecessary because the assets were protected by the bond. After a telephone conference with counsel for the parties, the court entertained the current motions regarding the question of the bond and of the restraints. Petitioner Robert used this opportunity to argue that new information in the co-administrators’ papers in support of their reargument motion concerning the bond and the restrictions revealed that Edward was now lying to or misleading the court and was thereby disqualified from serving as an administrator. He asked for vacatur of Edward’s appointment and again sought his own appointment as administrator. Edward answered with papers denying and contradicting Robert’s accusations of dishonesty. Robert asked for an evidentiary hearing. For the reasons stated in its November 1, 2019 decision, the court adheres to its determination to appoint Edward and Carole as co-administrators. It reiterates that where, as here, distributees are equally entitled to letters of administration, the court has wide discretion in selecting the fiduciary (SCPA 1001 [l][f][i]) and will consider appointing the distributee selected by the distributees entitled to the largest share (Matter of Djeljaj, 30 Misc 3d 1229[A] [Sur Ct, Bronx County 2011]). Robert’s accusations primarily reflect the brothers’ difference of opinion as to how the decedent’s business interests should be managed. Even if true, the accusations would not be evidence of “a tendency or habit of mind toward wrongful action” as required for disqualification on the ground of dishonesty under SCPA 707 (1) (e) (Matter of Cohen, 164 Misc 98,100 [Sur Ct, Kings County 1937] [internal quotation marks and citations omitted]; affd 254 App Div 571 [2d Dept 1938], affd 278 NY 584 [1938]). Robert also charges that Edward has misled the court about the potential consequences of eliminating the restraint on the sale of SIB A Corp.’s inventory imposed by this court. Here the court notes, again, that it has wide discretion in imposing conditions on the issuance of letters and there is no requirement in section 702 of the SCPA that the court conduct an evidentiary hearing before imposing restrictions. The court is satisfied with the explanations provided by Edward — which are supported by documents and statements under oath — and is convinced that, in any event, the restrictions and the bond are sufficient to protect the estate assets. The court grants the co-administrators’ motion and removes the restrictions on their authority to sell the inventory of SIBA Corp. and to sell, encumber, or otherwise dispose of Fingerlakes Mall Acquisition, LLC. The balance of the restrictions imposed shall remain in place, including the restriction on the sale of SIBA Corp. itself, as a business entity, and the restriction on the sale of real property other than the Fingerlakes Mall property. This decision, with the transcript of the December 6, 2019 proceedings, constitutes the order of the court. Amended administration decree signed. Clerk to notify. Dated: December 20, 2019
