ESTATE OF BURTON N. PUGACH, Deceased (21-55,/C) — This is a petition by Peter S. Gordon, Esq., (Gordon), one of two co-preliminary executors appointed pursuant to the terms of a stipulation dated March 28, 2022 entered in a related proceeding for the appointment of a preliminary executor, seeking authorization to unilaterally commence an action for wrongful death of the decedent. Relief is sought because the aforesaid stipulation provided Gordon and co-respondent Steven Bracco (Bracco) would be appointed co-fiduciaries subject to certain limitations including that Gordon and Bracco could only act jointly unless otherwise permitted by the court. For his part, Bracco refuses to consent or join as a party in the commencement of the action. Since the statute of limitations expires in several days, the matter is of some urgency. By way of background, and to put this proceeding in proper context, in a separate proceeding, an instrument has been submitted for probate that was drafted by Bracco, nominates co-respondent Shamin Frawley (Frawley) and himself as executors, and names Frawley as the residuary beneficiary. Gordon is opposing the probate of that instrument and supports a prior will. This proceeding seeks relief that is identical to a prior petition which was denied without prejudice on procedural grounds. On the return date of this proceeding, Bracco and counsel for Frawley appeared in opposition. Confusing the issue, the terms of the stipulation provided that relief from the court regarding the stipulation could only be obtained by “motion on notice to all parties”. Unfortunately as that proceeding terminated by decree, relief by motion was no longer possible. Bracco has filed papers, which though titled “Answer and Objections” are, in fact, in the form of an affirmation in opposition to a motion. Additionally, counsel for Frawley had previously filed a motion to dismiss the original petition pursuant to CPLR 3211 but subsequently withdrew the motion by affirmation in light of the court’s prior decision. After a conference between the parties, the court restores Frawley’s motion to dismiss to the calendar and will consider same in opposition to the instant petition; as well as Bracco’s written opposition and all of the oral arguments made by the parties in opposition and support on the record; and will summarily dispose of the petition (See CPLR 3211(c)). While counsel for Ms. Frawley vociferously argued about the deleterious effects a lawsuit may have on her client, including adverse publicity, nothing stated during oral argument nor submitted in the papers established why the court does not have the authority to grant the relief sought or how the estate would sustain irreparable damage if the court granted the relief requested. In fact, the specific terms of the stipulation of the parties envisions a dispute concerning the administration of the estate may arise and provides for court intervention as a remedy. Additionally, although Ms. Frawley argues that Peter Gordon does not have a legal basis upon which to file a wrongful death cause of action since no individuals exist who can assert damages pursuant to EPTL 5-4.1, the competing probate petitions filed by Mr. Gordon and Ms. Frawley both allege that the decedent died survived by distributees. Arguably, these persons could claim economic loss. In any event, it is not the court’s duty at this juncture to predetermine whether the proposed plaintiff actually, in fact, has a successful cause of action. Rather, its inquiry at this juncture in deciding whether to authorize litigation should be limited to whether the fiduciaries disagree and whether it is permissible to authorize one of them to take action. Simply put, while the petition is not titled as such, the court is being asked to provide advice and direction to a fiduciary (see, SCPA 2107). While originally such proceedings involved disputes resolving real estate, the stipulation of the parties and the appropriate expansive reading of the statute provides such relief can be entertained and decided (see e.g., In re William M. Kline Revocable Trust, 196 Misc. 2d 66). Despite Ms. Frawley and Mr. Bracco’s insistence that the court should deny the petition because the proposed cause of action will be unsuccessful, the court will not substitute its judgment for that of the fiduciary. Given the fact that the statute of limitations expires in several days, the dangers of the court prohibiting petitioner from timely commencing an action are more manifest than allowing him to do so, despite the arguments in opposition as to its ultimate futility. Clearly, whether or not Gordon should, in fact, commence the lawsuit is squarely within his authority (EPTL 11-1.1(13)). The court’s permission is neither a finding that the proposed action is meritorious (that will be determined by the trial court) nor that the fiduciary’s conduct is shielded from attack if a surcharge is sought. By analogy, the court is simply giving the fiduciary keys to a car. Whether he thereafter takes a leisurely trip or drives off a cliff is entirely up to him. The fiduciary will bear the ultimate responsibility. Additionally, Mr. Bracco’s opposition satisfies the requirement of written notification of his dissent pursuant to EPTL 10-10.7. Accordingly, upon the papers presented and an oral argument on the record, the petition is granted. The restrictions on the current preliminary letters are modified to the extent that Peter S. Gordon, as preliminary executor, is given leave to unilaterally commence a civil action seeking damages based upon claims of the wrongful death of the decedent. The motion to dismiss the petition is denied. This is the decision and decree of the court. The clerk of the court is directed to forward a copy of this decision and order to the parties who have appeared in this proceeding. Dated: December 19, 2022
