Decision and Orders signed: April 16-29, 2024
Surrogate Malave-Gonzalez ESTATE OF JOSEPH PATRICK MCLENDON, Deceased (10-2227/B) — In this settled estate, the New York State Insurance Fund (“NYSIF”) filed a motion pursuant to CPLR 5015 (a) (1), (3) and (4) seeking, inter alia, to vacate this court’s decree dated May 3, 2019 (“the decree”) that, inter alia, allocated the settlement proceeds to wrongful death causes of action; granted leave to distribute the settlement proceeds and judicially settled the account of the co-administrators, the decedent’s mother, who was appointed guardian of the property of the decedent’s four infant children, and his spouse, on the grounds, inter alia, that it was procured by fraud, misrepresentation or other misconduct of the co-administrators and/or their attorneys (“the attorneys”). NYSIF also asserts that the court lacks jurisdiction to dispose of its statutory lien against the settlement proceeds pursuant to Workers Compensation Law §29. Although the motion was served upon the attorneys and two other sons who attained majority, NYSIF failed to name and serve the co-administrators, the infant distributees and their respective property guardian, the guardian ad litem appointed for the infants in the underlying proceeding or other parties who would be impacted should this decree be set aside. The attorneys oppose the motion and attempted to file a cross motion seeking its dismissal as lacking merit. Although the cross motion was untimely submitted and not accepted for filing by the Miscellaneous Department, NYSIF served and filed a reply. Two conferences were held with a member of the court’s Law Department at which the attorneys reiterated a “no-pay” position and the court informed NYSIF that it should have filed a petition requesting the relief sought citing all individuals and entities that would be adversely affected by the relief sought and potential clawback of a portion of the distributed settlement proceeds. No additional documents have been filed by NYSIF to date. For the reasons stated below, the court dismisses NYSIF’s motion and the attorneys’ cross motion on procedural grounds. BACKGROUND The decedent died on June 22, 2010 as a result of injuries sustained in a workplace explosion. In addition to the spouse, his distributees are six children, all of whom were under the age of 21 at the time of his death, and four of whom are infants. Jurisdiction was acquired over all the necessary parties in the compromise proceeding, and a guardian ad litem was appointed for the four infant distributees. NYSIF, who was properly served with citation seeking to disallow its workers’ compensation claim based on the proposed allocation to wrongful death, did not appear on the May 8, 2018 return date or assert opposition. Accordingly, a decision issued on April 18, 2019 approving the relief requested and directing a decree to be settled. The decree dated May 3,2019 judicially settling the co-administrators’ account provided, inter alia, for the distribution of the $4,000,000 gross settlement proceeds for injuries sustained in the workplace explosion; allocation of the net distributable proceeds to the wrongful death cause of action; directed the payment of counsel fees and disbursements and the award to the guardian ad litem; authorized commissions; directed distribution of the remaining funds to the spouse and six children pursuant to the formula enunciated pursuant to Matter of Kaiser, 198 Misc 582 [Sur Ct, Kings County 1950); and authorized the purchase of annuities for the infant distributees with most, if not the entirety, of their distributive shares. The up¬front proceeds to be paid to the infants, if any, were to be paid to the duly appointed guardian of each infant's property jointly with the Guardian Clerk of this court, subject to further order of the court. The decree also provided that the co-administrators proceeded at their own peril with regard to any claims by parties over whom the court did not have jurisdiction. Accordingly, the entire net distributable proceeds were paid as directed therein, and annuities were funded for the infant distributees with most, if not all, of their distributive shares. The decree was not settled with notice of entry upon NYSIF. DISCUSSION As NYSIF asserts that the court lacks jurisdiction to dispose of its statutory lien against the settlement proceeds pursuant to WCL §29, it could have filed an application in the trial court determining its claim and thereafter filed an appropriate application in whatever court it deemed appropriate. However, should it seek redress herein, it must file a verified petition and obtain jurisdiction over all individuals or entities who would be affected should the decree be vacated and against whom clawback may be sought including, inter alia: the co-administrators, all of the distributees, the infants' property guardian, the guardian ad litem, the attorneys, the annuity issuers and broker (SCPA 301 [1 [a]; SCPA 303). As this court does not have jurisdiction over all necessary parties, this decision constitutes the order of the court dismissing NYSIF’s motion in its entirety as procedurally defective, without prejudice to re-asserting the relief sought by filing an appropriate petition and obtaining jurisdiction over all necessary parties in this court or commencing an action in the Bronx County Supreme Court where the underlying causes of action were pending. The attorneys’ cross motion is dismissed in its entirety as late filed and moot. The Chief Clerk is directed to mail copies of this decision and order to the attorneys for the co-administrators and NYSIF, the co-administrators, Barbara Wiscovitch and Marie Odette McLendon, and the two adult sons, Joseph P. McLendon, Jr. and Diante Joshua McLendon and the guardian ad litem. Proceed accordingly. April 16, 2024 ESTATE OF BARBARA L. COHEN, Deceased (16-700/A) — On the return date of citation in this compulsory accounting proceeding commenced by a distributee of the decedent, counsel for the petitioner and the pro se respondent appeared. The respondent waived any jurisdictional defects and on the record in open court the parties consented to the entry of a sixty (60) day order to account. Accordingly, the administrator is directed to file his account, a petition for its judicial settlement, and all papers required to obtain the issuance of a citation in the accounting proceeding within sixty (60) days of personal service upon him of a certified copy of the order to be entered hereon. The respondent shall then, without delay, cause the citation to be served upon all parties required to be served in an accounting proceeding pursuant to SCPA 2210 and appear before the court from time to time as required for the purpose of the settlement of his account. Settle order. April 17, 2024 ESTATE OF GWENDOLYN ELIZABETH FULLER, Deceased (23-1255) — In this proceeding for letters of administration by a daughter of the decedent, waivers and consents were filed for two other children. On the return date of citation the only other distributee, another daughter, appeared and requested time to seek counsel. She was given a date certain to serve and file objections and the matter was adjourned. On the adjourned date, petitioner and the other daughter each appeared by counsel. No objections having been filed the matter was marked “submitted.” Accordingly, the application is granted and letters of administration shall issue to the petitioner subject to the provisions of SCPA 805(3) with regard to the disposition of any real property in which the decedent had an interest and upon her posting a bond in the penal sum of $0.00. Settle decree. April 19, 2024 ESTATE OF JOSEPH ARYAN MONTERO a/k/a JOSEPH ARYAN MONTERO, JR., Deceased (21-584) — The estate’s distributees are the decedent’s parents and in this proceeding the mother (“petitioner”) seeks limited letters of administration to pursue a cause of action. The father, who lives in the Dominican Republic, was cited. Although he contacted the court by e-mail and was sent a virtual appearance invitation, he did not appear on the return date of process, nor has he filed objections to the relief sought herein. Accordingly, letters of administration shall issue to petitioner, limited pursuant to SCPA 702 (1) with respect to any cause of action. The Chief Clerk is hereby directed to mail a copy of this decision and the decree to petitioner’s counsel and the decedent’s father. Decree signed. April 19, 2024 ESTATE OF HERBERT L. HENDERSON, Deceased (20-150/A) — The administrator (the “petitioner”), who is the decedent’s surviving spouse, seeks to lift restrictions on her limited letters of administration so that she may settle a personal injury cause of action and judicially account for the settlement proceeds. The decedent sustained injuries as a result of a motor vehicle accident. He died intestate on April 29, 2020 from unrelated causes. The decedent’s distributees are the petitioner and a son. The son was cited but has never appeared nor indicated any opposition to the relief sought herein. The New York State Department of Taxation and Finance consents to the application. Attorney fees and disbursements are allowed in the amounts requested. The sum of $2,189.75 shall be paid to the petitioner to reimburse her for the decedent’s funeral expenses. The net distributable proceeds are to be paid to the petitioner pursuant to EPTL 4-1.1 (a) (1). Decree signed. April 22, 2024 ESTATE OF MARYJANE HORDINES, also known as MARY JANE HORDINES, Deceased (23-1898) — This is an uncontested SCPA 1407 proceeding to probate as a lost will, an original conformed copy of a will dated June 11, 2007, by decedent’s daughter and nominated executor under the instrument. The decedent died on March 7, 2020, at the age of 74. A consent was filed by the decedent’s son and the fiduciary of the estate of a post-deceased son. All three children are equal beneficiaries under the instrument. The propounded instrument is signed by the decedent, contains an attestation clause, was witnessed by two witnesses and annexes a self-proving affidavit. In support of the application, petitioner filed an affidavit stating that the decedent, who lived in the same home for 30 years, gave petitioner a copy of her will and kept the original will in her possession. However, the petition was unable to find the original will in the decedent’s apartment or in the possession of other family members. The affidavit also states that the decedent never indicated an intent to revoke the will and always reiterated that she wanted her estate split equally among the children. In further support, counsel for the petitioner provides a memorandum of law urging that the presumption that a will was destroyed by the testator may be rebutted by facts and circumstances showing that the will was accidentally lost or destroyed (see Matter of Lagin, 2008 NY Misc LEXIS 7721, 2 (Sup C,t Nassau County [2008]; see also Matter of DeFrisco, 2003 NY Misc LEXIS 2097, 6 (Sur Ct, Suffolk County [2003]). He reiterates petitioner’s efforts to locate the original will and concludes that if the decedent intended to revoke her will or make a new will she would have notified the petitioner who is the named executor and has a copy of the will. He notes that the attorney draftsperson also supervised the execution of the will. Counsel could not ascertain whether the drafting attorney had retained the original instrumen, as he was informed that that attorney is now deceased and the original t and was He states that he made efforts to find out if the attorney draftsperson had kept an original will was not in the office of the attorney who maintained the deceased attorneys client files. Counsel also provides affidavits of the attesting witnesses indicating that the copy of the will is an accurate copy of the will signed by the testator dated June 11, 2007. A strong presumption of revocation applies where an original copy of an executed instrument cannot be located after a testator’s death if that original was in the testator’s possession (see SCPA 1407 [1]; see also Matter of Fox, 9 NY2d 400, 407 [1961], quoting Collyer v. Collyer, 110 NY 481, 486 [1888]; Matter of Gottlieb, 75 AD3d 99, 105 [1st Dept 2010], lv denied 16 NY3d 706 [2011]; see also Matter of Marotta, 137 AD3d 787 [2d Dept 2016]; Matter of Demetriou, 48 AD3d 463, 464 [2d Dept 2008]). The presumption can be rebutted by clear and convincing evidence (see Matter of Millens’ Will, 30 NYS2d 274 [Sur Ct, Ulster County [1941], affd 264 App Div 936 [3d Dept 1942], affd 291 NY 613 [1943]), but where the presumption is not overcome, the lost will may not be admitted to probate (see Matter of Passuello, 169 AD2d 1007, 1008 [3d Dept 1991]). A copy of a lost or destroyed will may be admitted to probate only where: (1) it is established that the will has not been revoked; (2) execution of the instrument is proved in the manner required for the probate of an existing will; and, (3) all of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete (see SCPA 1407; Matter of Morton, NYLJ, Sept. 26, 2017 at 26, col 1 [Sur Ct, Kings County 2017]). Based on the proof submitted, including that the decedent gave petitioner a copy of the will, never informed her that she revoked it and confirmed to petitioner her wishes that the estate be divided equally among the children, and the fact that the distribution under the will is the same as intestacy, the court is satisfied that the will dated June 11, 2007 was not revoked by the decedent during her lifetime (see SCPA 1407 [1]). The court is further satisfied that the original of the instrument offered for probate was validly executed and, at the time of its execution, the testator was competent to make a will and not under restraint (see EPTL 3-2.1; SCPA 1408, 1407 [2]). In addition, the provisions of the lost will have been proven by the original conformed copy which was established as a true and complete copy of the executed will (see SCPA 1407 [3]). Accordingly, the original conformed copy of the will dated June 11, 2007 is entitled to be admitted to probate. Decree signed April 22, 2024 ESTATE OF SYDNEY PAIGE MONFRIES, Deceased (21-319/A) — The administrator, who is the decedent’s mother, seeks to lift the restrictions contained in her letters of administration so that she may distribute and judicially account for the remaining proceeds received from causes of action settled in the Supreme Court, Bronx County (Gonzalez, J.), which are being held in her attorney’s escrow account. The Supreme Court order, inter alia, directed the payment of counsel fees and disbursements. The decedent died intestate on April 14, 2019, from an alleged fall. The only distributees are the petitioner and the decedent’s father who, along with the New York State Department of Taxation, consent to the application. Blue Cross Blue Shield of Illinois (“BC/BS”), an alleged estate creditor, filed objections which were subsequently withdrawn pursuant to a written stipulation. Under the circumstances presented, including but not limited to the absence of any opposition to the petition and the lack of any unpaid debts or claims presented herein, the court grants the request to allocate the distributable proceeds to the wrongful death cause of action as stipulated. After the sum of $15,000.00 is paid to BC/BS, the remaining net distributable proceeds shall be paid to the parents in equal shares (EPTL 4-1.1 [a] [4]). Decree signed. April 22, 2024 ESTATE OF ARTHUR S. ROSENBAUM, also known as ARTHUR SPARK ROSENBAUM, Deceased (23-2256) — This is a proceeding by the decedent’s spouse for ancillary probate of the decedent’s will dated February 22, 2022, which was admitted to probate in Georgia, the decedent’s alleged domicile. The petitioner, the nominated executor, was appointed executor by the Probate Court of Clarke County, State of Georgia. It appears that the decedent possessed an interest in personal property in Bronx County which requires administration. The other distributee, a son, and the New York State Department of Taxation and Finance consent to the application. Accordingly, the will is entitled to be admitted to ancillary probate (SCPA 1602), and ancillary letters testamentary shall issue to the petitioner (SCPA 1604 [1] [b]). Decree signed. April 24, 2024 GUARDIANSHIP OF LISA P. K. Pursuant to SCPA Article 17-A (23-531) — This is a proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act for the appointment of the petitioner as guardian of the person of the respondent, an alleged intellectually disabled person. Upon the oral and documentary proof adduced at the virtual hearing, at which the proposed guardian and the respondent appeared remotely, it appears to the satisfaction of the court that the respondent is an intellectually disabled person within the provisions of Article 17-A of the SCPA and she lacks the capacity to make health care decisions. The court is further satisfied that the petitioner is qualified to assume the responsibility of serving as the respondent’s guardian. Accordingly, the application is granted. Letters of guardianship of the person of the respondent shall issue to her sister, Cassandra K. The Chief Clerk shall mail a copy of this decision and the decree to the pro se petitioner. Decree signed. April 24, 2024 ESTATE OF ANNIE WILLIAMS, Deceased (19-1197 & 19-1197/A) — In this contested estate, the decedent’s distributees are her five children, Anthony Richardson (“Anthony”), Jeffrey Richardson (“Jeffrey”), Cynthia Carr-Richardson (“Cynthia”), Carol Williams (“Carol”), and Shantel Williams (“Shantel”) and two grandchildren, Cedrick Williams (“Cedrick) and Cedrica Williams (“Cedrica”). Carol petitioned pro se seeking letters of administration and Anthony, by counsel, cross-petitioned for letters of administration to himself. Each petitioner filed objections to the other’s application and Shantel also filed objections to Carol’s appointment. Cedrick filed a waiver and consent to Carol’s application. Jeffrey indicated support of Anthony’s application on the record. Anthony amended his petition seeking to serve jointly with Cynthia. Cedrica has not appeared in this proceeding. Letters of temporary administration subject to SCPA 805 (3) were granted to Anthony on September 12, 2022. Those letters expired on September 23, 2023 before the realty was marketed. Several conferences with the parties and counsel for Anthony were held before a member of the Law Department, wherein it became clear that the animosity between the cross petitioners would make it difficult, if not impossible, for them to serve jointly. As previously noted, on January 23, 2024, Anthony’s petition was amended to add Cynthia as a co-administrator (the “Amended Petition”). By decision dated February 8, 2024, letters of temporary co-administration subject to SCPA 805 (3) were granted to Anthony and Cynthia. On April 9, 2024, the adjourned date of citation on Carol’s petition and the original cross-petition during which a discovery schedule was to be directed on the objections, counsel for Anthony appeared as did Cynthia, Shantel and Jeffrey. Carol, Cedrick and Cedrica failed to appear and have not indicated opposition to the amended petition. In support of their respective objections, Carol alleges that Anthony’s health is failing, he did not attend the court-directed mediation (although his counsel did), he is financially incapable of managing the estate and has failed to show an interest in resolving any of the outstanding issues. In support of objections concerning Carol’s ability to serve, Anthony asserts that Carol took steps that harmed the only estate asset, a one family residence, and, inter alia, allegedly permitted “squatters” to remain at the premises. Shantel also alleges that Carol mismanaged the realty and is unfit to serve as administrator. Children of a decedent have an equal right to letters of administration, and in a contested administration proceeding the court has discretion as to whom letters will be awarded to (see SCPA 1001[1][e]). Barring any ineligibility of the parties under SCPA 707, where there is a contest between persons in the same class of priority for appointment, the general guide for the exercise of the court’s discretion is, “that person must be appointed, who will, in the judgment of the Surrogate, best manage the estate of the intestate” (See Matter of Samuels, 204 Misc. 842 [Sur Ct, Kings County, 1953]). Here, the parties’ statements made during numerous court appearances clearly demonstrate that Anthony and Carol’s relationship is rife with antagonism, and the allegations in the objections to each application demonstrate long-standing family discord while the realty continues to incur expenses and has fallen into disrepair placing it at risk (see Matter of Pitts, 2019 N.Y. Slip Op. 51393 [U] Sur Ct, Monroe County 2019]). Therefore, the court must exercise its discretion to determine whose appointment the court deems to be in the estate’s best interest. Although, Carol has paid some of the expenses of the realty over the years, there are still outstanding bills to be paid and unauthorized persons have reportedly had access to the property. At the present time, however, since no opposition was raised by Carol to Cynthia’s appointment to serve as co-administrator with Anthony, and that while jointly serving as temporary co-administrators, they retained a broker upon Carol’s recommendation, procured a third party buyer and submitted a contract of sale, it appears to be in the estate’s best interest that both Anthony and Cynthia be permitted to continue to jointly administer the estate. Accordingly, in the absence of any opposition to the amended application adding Cynthia as an additional co-administrator, the amended cross petition (File No. 2019-1197/A) is granted. Letters of administration shall issue to the cross petitioners upon their filing a bond in the penal sum of $455,000.00. The letters of temporary administration previously awarded to Anthony, and the letters of temporary administration previously awarded to Anthony and Cynthia shall be revoked in the decree to be entered hereon. This decision constitutes the order of the court marking Carol’s petition “dismissed” (File No. 2019-1197). The Chief Clerk shall mail a copy of this decision and the decree to counsel, the pro se petitioner and all parties having appeared. Decree signed. April 26, 2024 ESTATE OF ARNALDO MARTINEZ, Deceased (21-1519/B) — In this compulsory accounting proceeding brought by the administrator d.b.n., the decedent’s spouse, jointly with the decedent’s son who recently attained majority, jurisdiction was obtained over the former administrator, an attorney. On the return date of supplemental citation, the spouse and son appeared pro se, and the respondent was contacted by court personnel and consented to the entry of a 30 day order. Accordingly, the application is granted. The respondent is directed to file his account, a petition for its judicial settlement, and all of the papers required to obtain the issuance of a citation in the accounting proceeding within 30 days of the date of service upon him of a certified copy of the order to be entered hereon. The respondent shall then, without delay, cause the citation to be served upon all parties required to be served in an accounting proceeding pursuant to SCPA 2210. The respondent shall appear before the court from time to time for the purpose of the settlement of his account. The Chief Clerk shall mail a copy of this decision, which constitutes the order of the court, to the petitioners and the respondent, Ronald Schwartz, Esq. Service of the directed certified copy of said decision and order shall be made by USPS First Class Mail upon the respondent. The affidavit of service upon the respondent at his office located at 11 Pound Hollow Road, Glen Head, New York 11545, with a copy of said certified order and certificate of mailing annexed, is to be filed with the court. Proceed accordingly. April 29, 2024 ESTATE OF GERALDINE SASSER, Deceased (22-1322/A) — On the return date of this application by a son of the decedent seeking to compel the administrator, a daughter of the decedent, to account, the respondent appeared on the court’s virtual platform, waived any jurisdictional defects and consented to the entry of a 30-day order. Both parties appeared pro se. Accordingly, the application is granted. The respondent shall file her account, a petition for its judicial settlement and all of the papers required to obtain the issuance of a citation in the accounting proceeding within thirty (30) days of personal service upon her of a certified copy of this decision. The respondent shall then, without delay, obtain jurisdiction overall of the necessary parties in the accounting proceeding pursuant to SCPA 2210, and shall appear before the court from time to time as required for the purpose of the settlement of her account. The Chief Clerk shall mail a copy of this decision, which constitutes the order of the court, to all parties who have appeared. Petitioner shall thereafter serve a certified copy of this decision and order on respondent. April 29, 2024 ESTATE OF RAMDAI BISRAM, Deceased (24-275) — The decedent is survived by five children and six grandchildren, children of two pre-deceased sons. In this application by a son for the issuance of limited letters of administration for an estate alleged to consist solely of a cause of action for wrongful death, consents were filed by the other children and jurisdiction was obtained over the six grandchildren. On this record, the unopposed application is granted. Letters of administration shall issue to the petitioner, limited pursuant to SCPA 702 (1) with respect to any cause of action. Decree signed. April 29, 2024
