In this compulsory accounting proceeding commenced pro se by two nieces, each a one-sixth distributee, the attorney for the administrator appeared virtually on the return of citation, and stated on the record that funds had been distributed after the nieces each executed a duly acknowledged receipt, release, waiver and refunding agreements, including an informal account and waiving a judicial accounting. Further of note, the informal accounting was provided to the nieces for review prior to their signing the receipt and release agreement. Notwithstanding, the court made several attempts to resolve the matter by conferencing the case with a member of the court’s law department. The nieces were unable to articulate to the court any reason or specific information being sought by way of a judicial accounting. Thereafter, the attorney for the administrator filed verified objections, including the original notarized receipt, release, waiver and refunding agreements from all the distributees, including the nieces. On the state of the record at an adjourned conference, the court advised the parties that the court would deem the filed papers a motion for summary judgment and afforded the nieces additional opportunity to submit further papers in reply. Thereafter, the nieces duly field failed their reply with an affidavit that the reply had been served upon the attorney for the administrator. Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v. Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant makes out a prima facie case, 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 (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference, and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 [1st Dept 2002]). It is axiomatic the overwhelming majority of estates are resolved informally. In this matter, the informal account was provided to the nieces who had the opportunity to consult an attorney and accountant before they individually executed the notarized receipt, release, waiver and refunding agreement and received their distributions (see Matter of Cozza, NYLJ, January 19, 2017 [Sur Ct, Bronx County 2017]). The nieces have failed to claim or demonstrate bad faith, fraud or duress on behalf of the administrator in obtaining the notarized receipt, release, waiver and refunding agreement which would warrant the court to direct a judicial accounting (see Matter of Bank of N.Y. [Blumenkrantz], 193 AD3d 634 [1st Dept 2021]). Accordingly, this decision constitutes the order of the court summarily dismissing the petition. The Chief Clerk shall mail a copy of this decision and order to all parties. Dated: July 12, 2021
