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New York County, Surrogate's Court: December 27, 2023

Decision & Orders signed: December 18 & 20, 2023

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ESTATE OF LYDIA SANDLER, Deceased (19-2734/H) — At the call of the calendar on September 29, 2023, the court granted the motion of Rochelle Klein (Rochelle) seeking dismissal of the turnover proceeding (SCPA 2103) commenced by Lynne Boyarsky (Lynne), as Preliminary Executor. Decedent died in 2019 and was surviving by her three nieces, Lynne, Rochelle and Karen Boyarsky. Lynne sought turnover of certain funds, allegedly withdrawn from decedent’s Franklin Templeton Investments (FTI) Annuity Account by Rochelle as decedent’s attorney-in-fact. The petition makes clear that Lynne’s purpose in seeking turnover of the funds is to collect and then distribute them pursuant to the beneficiary designation form on file with FTI, which designates each niece a one-third beneficiary. The motion, which sought dismissal of the petition pursuant to CPLR 3211, was granted and the petition dismissed because Lynne was not requesting that assets be returned to the estate in order to be distributed to estate beneficiaries. Instead, she was requesting that the funds be returned to her so that she could distribute them to the beneficiaries of the FTI Account, which is not an estate asset. Such relief may not be granted pursuant to SCPA 2103, which provides a mechanism for an estate fiduciary to recover estate assets. Subsequent to the disposition of this motion on September 29, 2023, Lynne filed an affidavit purporting to amend her turnover petition. Because the court had already granted the motion to dismiss, there was no petition to amend. As stated at the calendar, however, if Lynne elects to do so, she may file a new petition. This decision, together with the transcript of the September 29, 2023 proceedings, constitutes the order of the court. Clerk to notify. Dated: December 18, 2023

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