The following papers were considered in determining this motion: Papers Numbered Notice of Motion, dated June 18, 2022, Attorney Affirmation in Support, Affidavits of Ilysse Siers, dated May 7, 2022 and June 16, 2022, Memorandum of Law and Exhibits 1-6 Affidavit in Opposition, dated June 28, 2002, Memorandum of Law and Exhibits 7-9 Reply Affirmation, dated July 3, 2022, Attorney Affirmation, dated May 9, 2022, Affidavit of Ilysse Siers, Memorandum of Law and Exhibits 10-14 DECISION AND ORDER Preliminary Statement In this contested probate proceeding, Ilysse Siers (“Siers”) petitions to probate a written instrument dated December 6, 1995 (“propounded instrument”), purporting to be the last will and testament of Estelle Lerner (“decedent”) and to disqualify the nominated co-executor, Mark Lerner (“Lerner”), from serving pursuant to SCPA §707(l)(e).1 Lerner filed verified objections to the probate petition solely to the extent that it seeks his disqualification, but not to the admission of the propounded instrument to probate. Contemporaneously, Lerner petitioned this Court seeking to revoke preliminary letters testamentary issued to Siers pursuant to SCPA §§711(4) and 1412(1). Siers now moves to dismiss Lerner’s objections and for summary judgment. Lerner files opposition to the motion and seeks to revoke Siers’ preliminary letters. For the reasons set forth below, Siers’ motion is denied in its entirety and Siers’ preliminary letters remain suspended. Background The decedent died on May 9, 2021 at age 92, survived by two children, Siers and Lerner, and left the propounded instrument nominating them as co-executors. Siers petitioned this Court, individually, for testamentary and preliminary letters on or about October 18, 2021. In an affidavit filed in support of her application, dated October 14, 2021, Siers alleged that Lerner is ineligible to serve as a fiduciary because “[h]e is improvident, does not understand the duties, and is otherwise unfit for the execution of the office.” According to Siers, Lerner, as the decedent’s Article 81 guardian,2 made withdrawals from the decedent’s Morgan Stanley account without required court approval; failed to pay carrying charges on the property in which the decedent retained a life estate; failed to evict occupants of the property after the decedent’s death; failed to file required annual accountings; and failed to notify the Supreme Court of the decedent’s death and file a final report. Additionally, Lerner allegedly prevented Siers from calling or visiting the decedent; physically attacked Siers causing her to obtain an order of protection against him; and, upon information and belief, engaged in real estate investments with the decedent’s funds. In support of the application for preliminary letters, Siers’ counsel submitted an affirmation of urgency indicating the immediate need to commence turnover and discovery proceedings against Lerner to recover estate assets he allegedly removed as the decedent’s Article 81 guardian.3 The Court granted Siers’ application for preliminary letters on March 18, 2022, and amended on April 4, 2022, to correct the spelling of Siers’ name. Subsequently, Lerner filed objections stating that Siers seeks his disqualification based on “numerous false and unfounded allegations….” Lerner further objects to Siers serving as a fiduciary because of her animosity toward him and demands trial by jury. Simultaneously, he petitioned to revoke Siers’ preliminary letters on the grounds that Siers’ made “numerous false statements of material facts” and failed to provide him notice of the application as required by statute. Thereafter, several motions were filed by Siers and Lerner.4 The instant motion for determination before the Court is Siers’ motion to dismiss Lerner’s objections and grant summary judgment in her favor. Procedural History On April 22, 2022, via NYSCEF, Lerner moved by proposed order to show cause seeking the revocation of preliminary letters issued to Siers. On May 9, 2022, via NYSCEF, Siers cross-moved by proposed order to show cause seeking, inter alia, issuance of letters testamentary to Siers, and disqualification of Lerner from serving as co-executor. On May 19, 2022, Lerner filed a petition to revoke the preliminary letters issued to Siers. On June 18, 2022, via NYSCEF, Siers filed a notice of motion to dismiss Lerner’s objections and grant summary judgment. On July 27, 2022, Lerner again filed a proposed order to show cause, denominated as a motion, seeking the revocation of preliminary letters issued to Siers. On July 28,2022, the Court issued the latter order to show cause, setting a return date of August 16, 2022 and administratively adjourned Siers’ notice of motion return date to the same date. As Lerner’s proposed order to show cause filed on April 22, 2022 sought the same relief as the order to show cause that was issued by the Court on July 28, 2022, the April 22, 2022 filing is moot, and therefore, the Court has declined to entertain that order to show cause. Additionally, as Siers has incorporated her cross-motion into the notice of motion currently before the Court for determination, the proposed order to show cause filed on May 9, 2022 is moot, and therefore, the Court has declined to entertain that order to show cause. Summary Judgment Standard of Review The Court may only grant summary judgment pursuant to CPLR 3212(b) in the absence of any triable issues of act (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]).5 The proponent of the summary judgment motion must make a prima facie showing of entitlement to summary judgment as a matter of law by presenting sufficient evidence to demonstrate the absence of any material issues of fact (see CPLR 3212(b); Alvarez at 324; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Failure to make this initial showing requires the denial of the motion, irrespective of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). In reviewing the sufficiency of the proponent’s submission, the facts must be carefully viewed in the light most favorable to the nonmoving party (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 340 [2011]). Upon the prima facie showing, 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 requiring a trial of the action (see Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman at 562). To meet their burden, the opposing party must demonstrate genuine triable issues of fact, supported by allegations that are specific, detailed and substantiated by admissible evidence (Towner v. Towner, 225 AD2d 614, 615 [2d Dept 1996]). Mere conclusory assertions or hope that a trial will adduce additional facts will not suffice in defeating a motion for summary judgment (see Matter of O’Hara, 85 AD2d 669, 671 [2d Dept 1981]; McGahee v. Kennedy, 48 NY2d 832, 834 [1979]). Discussion Motion to Dismiss Lerner’s Objections and Grant Summary Judgment Appointing Siers Sole Executor Courts have long held that a testator’s nomination of fiduciary is to be granted great deference and honored absent one or more grounds for disqualification pursuant to SCPA §707 (see Matter of Leland, 219 NY 387, 389 [1916]; Matter of Flood, 236 NY 408,410 [1923]; Matter of Bergdorf, 206 NY 309, 312-313 [1912]). This section of the Surrogate’s Court Procedure Act enumerates several grounds for disqualification of a nominated fiduciary, including where a person “does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office” (SCPA §707(1)(d)). Improvidence “refers to habits of mind and conduct which become a part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question” (Flood at 411 quoting Emerson v. Bowers, 14 NY 449, 454 [1856]). Want of understanding “means an absence of intelligence sufficient to comprehend the nature and extent of fiduciary duties” (Matter of Britton, 173 Misc2d 300, 302 [Sur Ct, Westchester County 1997]). The phrase “otherwise unfit for the execution of the office” is a catch-all provision to disqualify persons deemed unfit to serve, even if they do not fit in one of the other enumerated categories for disqualification. The party alleging that a nominated executor is ineligible to serve by reason of one of the disqualifying conditions enumerated in SCPA §707 has the burden of proof (Matter of Krom, 86 AD2d 689, 690 [3d Dept 1982]). Further, what constitutes improvidence, want of understanding or unfitness warranting disqualification of a nominated fiduciary is clearly a question of fact. Here, Siers’ allegations that Lerner is ineligible to serve as co-executor can essentially be broken down into three categories: (1) Lerner’s alleged breach of his fiduciary duty as the decedent’s Article 81 guardian; (2) Lerner’s hostility toward Siers, including his arrest for physically attacking her; and (3) Lerner’s alleged misuse of the decedent’s funds in real estate speculation. To substantiate the first category of allegations, Siers submits several affidavits along with the following documents: invoices for property taxes, water charges, Con Edison, and National Grid, including collection notices in the decedent’s predeceased husband’s name, which show several thousand dollars in arrears around the time of the decedent’s death; copies of checks written from the guardianship account after the decedent’s death for the payment of the bond and home aid; proposed order, proposed counter-order and the final order of the Supreme Court in the guardianship proceeding, dated March 31, 2022; a copy of a check reimbursing Siers for property tax arrears pursuant the Supreme Court order, written from the “Estelle Lerner Family Trust;” and a letter from the court examiner requesting that Lerner cure certain deficiencies in his final accounting and provide supporting documentation. Lerner submits an affidavit in opposition, in which he asserts that Siers essentially made the same allegations against him in support of her order to show cause for contempt in the guardianship proceeding before the Supreme Court. Lerner opposed that application, as he does here, and offers several exhibits to refute the allegations, including the Supreme Court order to show cause for contempt; Siers’ affidavit in support of contempt; Lerner’s affidavit in opposition to contempt; Morgan Stanley and TD Bank statements and the Supreme Court order, dated March 31, 2022. Said order denied Siers’ motion for contempt and related relief and ordered that Lerner file a final account; provide Siers with copies of all financial statements and papers; and reimburse Siers for property taxes and water charges. The order directed that all remaining guardianship funds be held in escrow pending further order of the Supreme Court. To substantiate the second category of allegations, Siers offers several documents for in camera review pertaining to Lerner’s arrest for assaulting Siers in 2014 and the resulting order of protection which expired in 2016. In his affidavit, Lerner admits to the arrest, indicates that the matter was resolved and claims that it is Siers who has animus against him. Each party claims that the other is perpetuating litigation in this Court and Supreme Court to harass the other. Siers does not submit any documentation to substantiate her claim, which she makes on information and belief, that Lerner used the decedent’s funds to invest in real estate. Lerner refutes this allegation and submits an ACRIS transaction history for the decedent showing a multitude of transactions from the mid-1980s through the last entry in 2012, several years before his appointment as Article 81 guardian. Based upon a review of all of the filings, it is apparent that Siers has failed to make a prima facie showing of entitlement to summary judgment as a matter of law, as several triable issues of material fact exist. Further, where “conflicting inferences can be drawn from the evidence and issues of credibility exist, summary judgment should not be granted” (Vanderhurst v. Nobile, 130 AD3d 716, 717 [2d Dept 2015]). Accordingly, Siers’ motion to dismiss Lerner’s objections and for summary judgment is denied in its entirety. Lerner’s Demand for Trial by Jury Surrogate’s Court Procedure Act §502 provides, “[a] party is entitled to trial by jury, if duly demanded, in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right of trial by jury, in any proceeding for the probate of a will in which a controverted question of fact arises….” Proceedings for the probate of a will are governed by Article 14 of SCPA, whereas the eligibility to receive letters testamentary are governed by Article 7 of SCPA. Thus, a party is not entitled to a trial by jury where the objections to the probate petition relate solely to the eligibility of a nominated fiduciary and not to the admissibility of the propounded instrument to probate (see Krom, at 689-690). Accordingly, Lerner’s request for a trial by jury is hereby denied. The proceeding on the determination of the eligibility of the nominated fiduciaries shall proceed pursuant to SCPA §505. Suspension of Preliminary Letters Testamentary Prior to issuance of citation on Lerner’s petition to revoke Siers’ preliminary letters, Lerner filed a proposed order to show cause denominated as a motion on the original probate proceeding. The order to show cause was issued, suspending Siers’ preliminary letters. Lerner’s petition was thereafter properly captioned as subfile “A.” Notwithstanding that the order to show cause was filed improperly, the Court takes judicial notice that Siers failed to provide the required notice of the application for preliminary letters pursuant to SCPA §1412(1). Further, there is no urgency requiring preliminary letters, as the estate consists primarily of the guardianship funds currently under review by the Supreme Court, there is no real property to be maintained and no taxes owing. Additionally, Siers has failed to commence any turnover or discovery proceeding as she had indicated was necessary and urgent for the issuance of letters. Accordingly, the preliminary letters testamentary issued to Siers remain suspended pursuant to SCPA §719. Conclusion Upon the record presented, Siers’ motion dismissing Lerner’s objections and for summary judgment is denied in its entirety and the preliminary letters testamentary previously issued to Siers remain suspended. Sufficient facts have been alleged to require a hearing on the fitness of the nominated fiduciaries. Accordingly, the Court directs counsel for the parties to appear for a pretrial conference on February 9, 2023 at 10:00 a.m. Thereafter, this proceeding will be scheduled for a hearing. This constitutes the decision and order of the court. Dated: January 17, 2023
