In this proceeding, co-executor, Michael S. Winokur (petitioner), moves pursuant to CPLR 3211 to dismiss the objections filed to his accounting by co-executor, Nimrod Schwarzmann (objectant). According to petitioner, the objectant cannot establish a financial interest in the estate, and therefore lacks the standing to assert objections. Although not specified in the notice of motion, petitioner is apparently seeking relief pursuant to CPLR 3211[b]. While counsel’s affirmation in support mentions CPLR 3211[a][3], such section is inapplicable as it governs motions to dismiss causes of action. Objectant opposes the motion, arguing that the motion is technically deficient and that objectant’s standing derives from his status both as a co-executor and also separately as a beneficiary of the estate of his mother, Genia Schwarzmann (Genia), the post-deceased residuary beneficiary of the within estate. As an aside, the fiduciary of Genia’s estate has not filed objections to the within accounting. As a threshold matter, the Court will first address the objectant’s claims of technical deficiency. While the motion before the Court is one for dismissal pursuant to CPLR 3211, the alleged deficiencies of the moving papers raised by the objectant are erroneously grounded in the standard required for motions for summary judgment governed by CPLR 3212. Since these arguments are totally inapplicable, the Court finds no basis to specifically address them, and turns to the merits of the motion before it. CPLR 3211[b] provides that a party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit. Petitioner asserts in essence, that objectant has no standing to object since he has no financial interest in the estate and would not benefit if any of the objections were successful. Standing requires that the party bringing the claim has an injury in fact or a stake in the matter before the Court (see e.g., Silver v. Pataki, 96 NY2d 532 [2001]; Gowen v. Helly Nahmad Gallery, 2018 NYLJ Lexis 1992 [Sup Ct. New York County 2018]). The Court of Appeals describes the test for determining a litigant’s standing as follows: A [party] has standing to maintain an action upon alleging an injury in fact that falls within his or her zone of interest. ‘The existence of an injury in fact-an actual legal stake in the matter being adjudicated — ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute ‘in a form traditionally capable of judicial resolution.’ Silver v. Pataki, 96 NY2d 532 [2001]. In the realm of estate litigation, and particularly in accounting proceedings, the law generally is that a person who has no pecuniary interest in an estate lacks standing to object to an executor’s final account (see e.g., Matter of Woods, 36 AD2d 880 [3d Dept 1971]; Matter of Neubauer (Fakiris), 70 Misc 3d 1202(A) [Surr Ct Queens County 2020]). Consequently, objectant’s status as a beneficiary of Genia’s estate would not suffice in this regard as the only party with the capacity and standing to object on behalf of Genia’s estate is the fiduciary thereof (SCPA 2210[11]; Stallsworth v. Stallsworth, 138 AD3d 1102 [2d Dept 2011]; see also, e.g, Matter of Gardner, 2012 NYLJ Lexis 2823 [Surr Ct Kings County 2012]). However, objectant’s status as a co-executor of this estate bestows upon him both the capacity and the standing to raise objections to the account of his co-fiduciary (Matter of Schultz, 104 AD3d 1146 [4th Dept 2013]). Objectant’s authority and interest in doing so derives from his own fiduciary responsibilities: An executor is a fiduciary who owes ‘a duty of undivided loyalty to the decedent and has a duty to preserve the assets the decedent entrusted to him’…'Suffice it to say, an executor who knows that his co-executor is committing breaches of trust and not only fails to exert efforts directed towards prevention but accedes to them is legally accountable.’ Id. at 1148 [4th Dept 2013] (internal citations omitted). Accordingly, the motion to dismiss the objections is denied. That said, objectant should be mindful that this precedent is equally applicable to objectant’s own conduct as co-executor. His actions are also subject to scrutiny by this Court and all interested parties, including the within petitioner. Notably, the objections raised herein give rise to the distinct possibility that objectant himself has been derelict in his duties by virtue of inaction on his part, and delegation of his fiduciary responsibilities entirely to his co-executor. More importantly, the court observes that the objectant has wholly failed to comply with this court’s decision and order dated June 28, 2017, directing the objectant to file his own accounting, petition for judicial settlement thereof, and cause citation to issue. Accordingly, this proceeding is held in abeyance for thirty days from the date of this decision and order for objectant to comply with the court’s order of June 28, 2017. If objectant fails to timely comply, the within objections may be dismissed upon submission of an affirmation of non-compliance submitted by counsel for petitioner. This is the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this decision and order to all of the parties that have appeared in this proceeding. Dated: August 3, 2021
