ESTATE OF DOLORES MORRISSEY, Deceased (16-1401/E) — At the call of the calendar on January 6, 2023, the court determined the petition of Meryn Klabouch, as hereafter described. The matter had previously been before the court on December 9, 2022, at which time a conference was held and an agreement was reached by the parties regarding certain relief sought by Petitioner, in particular as to an advance distribution of her beneficial interest under the will of decedent Dolores Morrissey, Petitioner’s aunt. On the record, on January 6, 2023, Petitioner’s counsel confirmed Petitioner’s receipt of the advance distribution from Respondent-Executor Janina Lewandowska, whose counsel also appeared before the court.1 The court, accordingly, concluded that the portion of the petition that seeks an advance distribution to Petitioner is moot as a result of this distribution. Further, to the extent that Petitioner seeks an advance distribution in excess of what she recently received, that aspect of the petition was denied. Petitioner has not shown entitlement to any further distribution at this time under SCPA 2102 (4) or (5). The available estate assets may be needed for administration expenses or to pay the bequests of other beneficiaries. Petitioner’s request for permission to take a reverse mortgage against the shares of stock allocated to decedent’s cooperative apartment, the primary asset of the estate, was denied as moot, the apartment having been sold. The petition also seeks an order or decree compelling the Executor to turn over assets to Petitioner. The court denied that relief and dismissed any such claim, because that relief must be sought by Petitioner in her fiduciary capacity.2 The denial is without prejudice, and Petitioner may pursue those claims in the discovery proceeding that she recently commenced against Lewandowska in her individual capacity or in the Executor’s accounting proceeding. The court notes that the Executor has been directed, by decision and order of this court dated December 12, 2022, following the prior appearance by the parties, to file an amended account and amended petition for its judicial settlement no later than January 13, 2023. The request for an order surcharging the Executor was also denied without prejudice to the pursuit of such relief in the context of the Executor’s accounting. Petitioner also asks the court to compel the Executor’s former counsel to turn over moneys that counsel is holding in escrow. That relief was also denied. The court, however, noted that the December 12, 2022 decision provides the Executor with a deadline to file any turnover petition against her former counsel.3 Finally, in view of these determinations, the request for an immediate hearing was moot and denied. This decision, together with the transcript of the January 6, 2023 proceedings, constitutes the order of the court. Dated: January 10, 2023
1. The New York State Attorney General, and one other respondent, an individual beneficiary under the will of decedent, also appeared before the court on January 6, 2023. 2. By decision dated October 5, 2021, this court directed the issuance of Limited Letters of Administration to Petitioner, thus providing her the authority to commence a discovery or turnover proceeding against Lewandowska in her individual capacity to recover estate assets that Petitioner claims are in Lewandowska’s possession. 3. During the January 6, 2023 court proceedings, counsel for the Executor indicated that such petition may not be filed because the money being held by the Executor’s former counsel was used to pay legal fees and other administration expenses and that those fees and expenses will be reflected in the account to be filed by the Executor.
