In this contested estate, a daughter of the decedent, Lelia Vilato (“Lelia”) filed a petition seeking letters of administration (File No. 2022- 2458, the “first proceeding”). Jurisdiction was obtained over the decedent’s other distributees, three children, one of whom is alleged to be under a disability. The decedent’s other daughter, Reynaris Vilato (“Reynaris”) appeared by counsel and filed objections to the application and a cross-petition (File No. 2022-2458/A, the “second proceeding”) requesting that letters of administration issue to her. To date, jurisdiction is not complete in the second proceeding. The sole asset of the estate is a beauty salon (the “Salon”) located in Manhattan. The parties participated in court-sponsored mediation with their respective counsel, and thereafter, Reynaris filed a pro se notice of appearance. A settlement conference was then held with a member of the court’s Law Department, after which, the Bronx Public Administrator was appointed temporary administrator of the estate by decree dated September 26, 2023. Subsequently, additional conferences were held with all parties and their respective counsel. During those conferences Reynaris indicated her intent to file an affirmation withdrawing the second proceeding. The parties also consented to the Public Administrator being appointed fiduciary and receiving full letters of administration, to be issued after Reynaris filed the affidavit to withdraw the second proceeding and a consent to the appointment of the Public Administrator. At that conference, Lelia’s counsel was given a date certain by which to file a reply to Reynaris’ objections, in the event she did not withdraw her petition as discussed, and the matter would be marked “submitted” for decision on those papers. Thereafter, Reynaris indicated to the court that she would not be withdrawing her petition. On or about December 8, 2023, Lelia filed a motion seeking to dismiss Reynaris’ objections and have the Public Administrator appointed as fiduciary. In her objections, Reynaris alleges in relevant part that she is better qualified to serve as administrator because Lelia has never accounted for any funds taken by her or her mother from the Salon. She further states that she has the skill set to maintain the business, noting that she has paid all business expenses, including back rents owed, private loans of the business and past due electric bills. She alleges that other than staff wages paid on the weekends, Lelia has refused to pay any bills of the Salon. She further alleges that Lelia hired unqualified stylists and has refused to pay other stylists, putting the Salon at risk of lawsuits. She states further that Lelia grossly underestimated the value of the salon. Reynaris states that she has made distributions to her siblings, including Lelia, noting that Lelia has not done the same. She alleges that Lelia disabled the security cameras in the Salon to hide her malfeasance, proving that Lelia is unfit to serve as fiduciary. She states that the relationship between her and Lelia is damaged beyond repair and it is impractical for them to serve as co-administrators. Accordingly, she vehemently objects to Lelia being appointed and requests that she be appointed administrator, or instead that the court grant such other relief that may be just and proper. In her motion to dismiss Reynaris’ objections, Lelia argues that Reynaris gained control of the Salon, took over the financial business of the Salon and changed the electronic locking system, preventing her access. She alleges that Reynaris bifurcates salary payments and told employees that Lelia is responsible to pay weekend salaries separately. Lelia urges that as a restult of Reynaris’ hatred toward her, the business is being subjected to the loss of clients and income and an increase amount of indebtedness that has damaged the business. She argues that Reynaris has co-mingled estate assets with her own personal property and misappropriated estate assets, disqualifying her to be appointed fiduciary. She requests that the court dismiss Reynaris’ objections, deny her petition to be appointed administrator and appoint the Public Administrator as fiduciary of the estate. According to the parties, Reynaris operates the Salon during the week and Lelia runs it on the weekends. Each of them vehemently accuses the other of stealing from the Salon and mismanaging the business. While each sister denies the other’s accusations, neither disputes that their contentious relationship jeopardizes the Salon’s continuing survival. Reynaris admits that she has made unauthorized distributions to her siblings, including Lelia. Although disharmony between a proposed fiduciary and beneficiaries of an estate alone is not a ground for disqualification, a fiduciary may be disqualified on the ground of being otherwise unfit for office (see SCPA 707[1][e] where the disharmony rises to the level that it jeopardizes the interest of the beneficiaries and the proper administration of the estate (see Matter of Beharrie, 84 AD3d 1227, 1229 [2d Dept 2011]; Matter of Palma, 40 AD3d 1157 [3d Dept 2007] [noting that hostility or antagonism which threatens to interfere with proper administration of the estate may be sufficient to disqualify an otherwise eligible distributee]; Matter of Sadowski, 21 AD3d 1034 [2d Dept 2005]; Matter of Thompson, 232 AD2d 219 [1 st Dept 1996]; Matter of Rad, 162 Misc2d 229 [Sur Ct, New York County 1994] [appointing Public Administrator fiduciary of the estate upon finding that hostility exhibited by two siblings, who were both petitioning to be appointed disqualified them]; see also Matter of Jurzykowski, 36 AD2d 488 [1 st Dept 1971], aff’d 30 NY2d 510 [1972]. Given the allegations made in both proceedings, the fact that during a conference with a member of the court’s Law Department both parties consented to letters issuing to the Public Administrator and that the court is convinced that the estate’s primary asset, the Salon, is at serious risk of depreciation, it is in the estate’s best interest to appoint a neutral third party to serve in this position. Accordingly, this decision constitutes the order of the court granting letters of administration to the Public Administrator. The temporary letters that issued to her shall be revoked in the decree to be entered herein. The Chief Clerk is directed to mail a copy of this decision to Reynaris Vilato, Lelita Vilato and counsels of record. Proceed accordingly. Dated: February 26, 2024
