The decedent, Rebeca Barmapov, a/k/a Rebecca Barmapov (hereinafter “decedent”), died on October 6, 2022, leaving an instrument purported to be her Last Will and Testament dated June 10, 2021 (hereinafter “Will”), and a prior purported Will allegedly handwritten by the decedent on May 12, 2021 (hereinafter “Handwritten Will”). Decedent is survived by spouse Benhamin Barmapov (a/k/a Benny Barmapov) (hereinafter “objectant”) and petitioner Erma-Erit Barmapov Segev (hereinafter “petitioner”). On January 27, 2022, petitioner filed a petition for probate of the purported Will dated June 10, 2021, and a petition for preliminary letters testamentary. On March 25, 2022, a guardian ad litem was appointed on behalf of decedent’s alleged incapacitated son Bernard Barmapov (a/k/a Barry Barmapov). The surviving spouse filed a notice of election on April 8, 2022, and an objection to the application for preliminary letters testamentary on March 24, 2022. On May 5, 2022, petitioner filed a reply to the objections to her application for preliminary letters testamentary. Thereafter, objectant filed further opposition to petitioner’s application on May 19, 2022, with supporting affidavit of petitioner’s son Dean Segev. Petitioner filed a response to the objections to her application on June 2, 2022, with supporting affidavits from her sons Sean Barmapov and Ryan Segev, decedent’s sister Annette Szusterman, and family friend and employee, Jamie Rockwell. Based on the objections filed, an eligibility hearing was scheduled pursuant to SCPA 707 for October 25, 2022. Petitioner and objectant filed their respective witness lists and pre-marked exhibits for the hearing. On July 6, 2022, the guardian ad litem filed a report recommending that, at this time, it is premature to appoint the petitioner as fiduciary. She further recommended the appointment of a neutral party as temporary administrator, here, the Richmond County Public Administrator. The eligibility hearing was held on October 25, 2022, and the court reserved decision on petitioner’s application. At the hearing, the court heard testimony from the petitioner and witnesses Sean Barmapov, Annette Szusterman, and Jamie Rockwell in favor of the petition. The court also heard testimony in opposition to the application from the objectant and witness Dean Segev. Petitioner testified that she was decedent’s primary caretaker and natural choice as fiduciary. According to petitioner’s testimony, upon decedent learning of her terminal cancer, she requested petitioner assistance in the creation of her will. Petitioner also testified that the decedent and objectant were in the process of a divorce proceeding at the time of decedent’s death. Petitioner contends she conducted an internet search at decedent’s request for a last will and testament in accordance with New York law. On June 10, 2021, petitioner alleges she drove with decedent to a local UPS store to execute the purported Will before a notary public and witnesses. According to her supportive papers dated May 5, 2022, petitioner went over the printed form Will with decedent. Petitioner alleges to have handwritten decedent’s wishes into the form Will which was then witnessed by two UPS employees and notarized. This purported Will left petitioner fifty percent (50 percent) of decedent’s estate, twenty percent (20 percent) to petitioner’s son Sean Barmapov, twenty percent (20 percent) to petitioner’s son Ryan Segev, and ten percent (10 percent) to decedent’s son Bernard (Barry) Barmapov, an alleged incapacitated person. The purported Will left no gift to decedent’s grandson, Dean Barmapov, objectant’s witness. Petitioner’s testimony was confirmed by Sean Barmapov. Jamie Rockwell, family friend and later employee of the Barmapov family, testified on behalf of petitioner. Rockwell testified that, in the course of her employment, she conducted all research for the family, including but not limited to having searched for doctors and lawyers, as needed. Rockwell also testified that she assisted petitioner in obtaining a divorce attorney for the decedent. According to Rockwell, petitioner is fit to serve as fiduciary, having timely rendered payment for her services and having never missed a pay period. Of note, Rockwell further testified that petitioner never executed tax returns as her employer. In opposition, objectant testified that during settlement negotiations in the divorce proceeding, he transferred the 118 10th Avenue New York, New York property, previously solely held by the objectant, to a limited liability company, B&R Tenth Avenue LLC, providing forty-nine percent (49 percent) of the shares to the decedent. Objectant also testified as to petitioner’s lack of fitness to serve as fiduciary, having had to support her and her children financially and supporting her numerous failed business ventures throughout her adult life. Objectant, as 51 percent shareholder of the B&R Tenth Avenue LLC, also testified that he would be unable to properly manage B&R Tenth Avenue LLC with petitioner as the fiduciary of decedent’s estate due to her irresponsibility, hostility, and inability to work with others. Objectant further testified that he objects to her appointment due to his lack of trust of petitioner and their ongoing acrimonious relationship. In addition, objectant testified that he was surprised by the purported Will, in that it was not done by an attorney and that it left only 10 percent of decedent’s estate to their incapacitated son, Barry Barmapov and disinherited one of their grandchildren. Furthermore, objectant testified that he has never given petitioner any financial decision-making ability in his businesses due to her temper and inability to communicate and work with others. Dean Segev testified in support of objectant, that petitioner, his mother, is unfit to serve as fiduciary due to her history of irresponsibility, lack of understanding, and lack of intelligence as to financial matters. He further testified that objectant financially supported him, his siblings and petitioner throughout their lives. Under §707(1)(d) of the SCPA a person may be ruled ineligible to receive letters if he or she “does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or…is otherwise unfit for the execution of the office.” The provision for denial of letters to one who is “otherwise unfit for execution of the office” was added with the intention “to clarify the standard to be employed by the Surrogate…and to expand the possible bases on which denial of letters might be grounded” (see, Matter of Est. of Rad, 162 Misc.2d 229, [Sur. Ct. NY Co. 1994]). The burden of proving ineligibility rests with the objectant (see, Matter of Krom’s Est., 86 AD2d 689 [3rd Dept. 1982]). Here, objectant contends that petitioner is unfit, having made misrepresentations, and having manipulated and unduly influenced the decedent. In addition, objectant contends petitioner lacks the competence to handle the decedent’s business matters and is financially irresponsible. Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor (see, In re Will of Mandlebaum, 7 Misc.3d 539, 542 [Sur. Ct. Nassau Co. 2005]). Here, objectant’s allegations of petitioner’s undue influence and misrepresentation present an issue as to her competence to serve as preliminary executor (see, Matter of Scheu, 29 AD2d 626, 626 [4th Dept. 1967]). This court has held that where a bona fide issue of undue influence is present, the nominated executor will not be appointed (see, Matter of Scamardella, 169 Misc.2d 55, 57 [Sur. Ct. Richmond Co. 1996]; see also, Matter of Cullen, 163 Misc.410 [Sur. Ct. NY Co. 1937]). Further, this court previously held in Matter of Knee, the nominated executor was ineligible to serve as fiduciary due to the court’s findings, after a hearing, of improvidence and dishonesty (see, No. 2014-106, 2015 WL 13757774, at *1 [N.Y.Sur. July 01, 2015]). Here, testimony was presented demonstrating petitioner’s inability to manage financial matters through multiple failed business ventures and having been financially supported by the objectant. Similarly, in Matter of Koksvik, 69 Misc. 3d 1212 (a) [Sur. Ct. Orange Co. 2020] the petitioner was found ineligible to receive fiduciary letters due to his unfitness for the office and/or improvidence pursuant to SCPA 707 (1)(e), as the documented evidence submitted demonstrated hostility and animosity between the petitioner and the distributee-surviving spouse. Here, objectant testified as to petitioner’s inability to work with others, lack of financial aptitude, and objectant’s inability to work with her to manage B&R Tenth Avenue LLC. Disqualification is warranted if the disharmony jeopardizes the interests of the beneficiaries and the proper administration of the estate (see, Matter of Jurzykowski, 36 AD2d 488 [1st Dept. 1971], affd. 30 NY2d 510 [1972]; see also, Matter of Edwards, 274 AD 244 [4th Dept. 1988]; see also, Matter of Younker, 111 Misc.2d 599 [Sur. Ct. NY Co. 1981]; see also, Matter of Lipsit, 50 Misc.2d 289 [Sur. Ct. Westchester Co. 1966]). A Surrogate may disqualify a person from receiving fiduciary letters where the friction between the fiduciary and beneficiaries interferes with the proper administration of the estate, and future cooperation is unlikely (see, Matter of Thompson, 232 AD2d 219 [1st Dept. 1996]). Based upon the testimony presented during the hearing, there is clear and evident friction and animosity between the petitioner and the beneficiaries of decedent’s estate, which are not likely to resolve and would compromise the administration of the estate (see, Matter of Knee, supra). In addition, the well documented hostility existing between petitioner and objectant may significantly jeopardize the management of the primary estate asset, specifically B&R Tenth Avenue LLC. The evidence presented suggests that petitioner’s hostility and determination to control the estate for her own benefit may render petitioner unable to act impartially (see, Matter of Rad, 162 Misc.2d 229 [Sur. Ct. NY Co. 1994]). Additionally, petitioner’s failure to properly prepare tax documentation as required by law for her one employee, namely Ms. Rockwell who testified to same before this court, is further evidence of petitioner’s improvidence to act as a fiduciary. As such, in this proceeding for the appointment of a preliminary executor, to ensure the efficient administration of the estate, this court deems the appointment of an impartial fiduciary appropriate (see, In re Sadowski, 21 AD3d 1034 [2nd Dept. 2005]). Accordingly, petitioner’s motion for the appointment as preliminary executor is denied. The court appoints the Richmond County Public Administrator as temporary administrator and letters shall issue. This decision shall constitute the order of the court.
