Decedent Richard Johnson died a resident of Richmond County on February 14, 2020, survived by his two children, Cynthia Dade and James Johnson. On June 26, 2020, Cynthia Dade filed a petition for administration and appointment as administrator. A decree granting administration and granting letters of administration to Dade was issued on July 20, 2020, without the need to file a fiduciary’s bond. Thereafter, communications ensued between then counsel to administrator Cynthia Dade, and counsel to James Johnson, concerning an accounting and information on the status of the estate. According to Johnson, Dade failed to respond to his inquiries as to, among other things, an accounting of the estate, information regarding the sale of decedent’s residence and other estate assets, and information pertaining to decedent’s retirement and pension account. Specifically, petitioner Johnson made inquiry as to Dade’s having marshaled and collected decedent’s DTCC Retirement Plan and pension in the amount of $174,587.60, alleged to have been deposited in her own bank account and “comingled” with her personal funds. Petitioner Johnson contends that Dade misappropriated estate funds, and rendered payment of commissions to herself, as administrator, in the amount of $16,000. On November 19, 2021, James Johnson moved by Order to Show Cause, pursuant to SCPA 719 and SCPA 711, seeking to revoke letters of administration issued to Cynthia Dade. According to petitioner, administrator Cynthia Dade has defaulted in supplying information concerning estate assets, mingled estate funds with her own personal funds, and has otherwise misappropriated estate funds. Following several requests for information regarding estate assets and an accounting, counsel to Cynthia Dade then moved by Order to Show Cause, seeking leave to withdraw as counsel, which was granted on December 20, 2022. Upon petitioner’s allegations that Dade was attempting to avoid service of process, a Supplemental Order to Show Cause and Second Supplemental Order to Show Cause was filed by petitioner James Johnson. Administrator Cynthia Dade failed to appear or respond to either the Supplemental Order to Show Cause or Second Supplemental Order to Show Cause. As such, on March 2, 2023, the court issued an order, directing administrator Cynthia Dade to appear before this Court on March 15, 2023 at 10:00 a.m., for an in-person appearance, and continued the temporary restraining order. However, administrator Cynthia Dade again failed to appear, either pro-se or by counsel. Inasmuch as the court sought, in the administration of justice and fairness, to provide the administrator with more time to appear or retain counsel, on March 15, 2023, the court issued another order directing administrator Cynthia Dade to appear, by counsel or pro-se, on March 29, 2023 at 10:00 a.m. The order also continued the restraining order pending a hearing and determination of petitioner’s motion. The court further directed that the failure by administrator Cynthia Dade to appear and respond may result in this matter being marked uncontested, and the court granting the relief requested by petitioner James Johnson. Nonetheless, on March 29, 2023, administrator Dade failed to appear, and the court reserved decision on the motion. While the court has the power to remove a fiduciary, that power is exercised sparingly and only where the record demonstrates a danger to the estate if removal is denied (see Matter of Epstein, 202 AD3d 669, 671 [2nd Dept, 2022]). Pursuant to SCPA 719, the court may make a decree suspending or revoking letters issued to a fiduciary, even without a petition or issuance of process, where among other things, any of the facts provided in SPCA 711 are brought to the attention of the court (see Matter of Steward, 193 AD3d 940 [2nd Dept, 2021]). Here, petitioner has sufficiently shown that a danger to this estate exists. Administrator Cynthia Dade has attempted to avoid service of process, neglected to appear on the return of process, and has violated court orders, without satisfactory excuse. In addition, Dade defaulted in providing information concerning estate assets and failed to dispute petitioner’s allegations of serious misconduct, including, inter alia, allegations that she mingled estate funds with her own personal funds (see SCPA 719). If an administrator maladministers an estate, or otherwise acts improperly, commissions may be denied or surcharged (Matter of Campbell, 138 AD2d 827 [3rd Dept, 1988]). Here, however, this request is premature, and issues of fact exist as to whether Dade was grossly delinquent in her administration of the estate. Accordingly, that portion of the petition and Orders to Show Cause, pursuant to SCPA 719 and SCPA 711, seeking to revoke Letters of Administration issued on July 20, 2020, and to remove Cynthia Dade as administrator, is granted. However, that portion of the petition and Orders to Show Cause seeking to deny Cynthia Dade payment commissions for her administrator’s services and request to impose a surcharge is denied, without prejudice, with leave to renew. This decision shall constitute the order of the court. Dated: May 24, 2023
