Decision and Orders signed: November 4, 2024 Surrogate Gingold
ESTATE OF MARY W. HOWARD, Deceased (00-1534/A) — In this contested former executor’s accounting proceeding, the objectant, the Attorney General of the State of New York, moves pursuant to CPLR 2221, to reargue its prior motion for summary judgment on its objections to the accounting, which was granted in part by decision and order dated October 17, 2023. The motion is unopposed. The Attorney General argues that, in deciding the prior motion for summary judgment, the court miscalculated the surcharges awarded on objections 1, 2 and 37 to the account, which were based on the failure of the account to balance.1 As a result of this error, the parties have been unable to finalize a decree in the proceeding. A motion for leave to reargue under CPLR 2221 is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or mistakenly arrived at its prior decision (Belrose Fire Suppression, Inc v. Stack McWilliams Inc, 51 AD3d 485, 485 [1st Dep't 2008]). However, “[r]argument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted” (Setters v. AI Prop & Development Corp, 139 A.D.3d 492, 492 [1st Dep't 2016]). In deciding the prior motion, the court awarded summary judgment to the Attorney General on the crux of its objections, holding that Paul Feilzer, the former executor of decedent’s sizable estate, breached his fiduciary duty to the estate and the charitable beneficiaries by investing $4,195,000, or approximately a quarter of the estate’s assets, in three start-up companies in which he held an interest. Feilzer’s loans to these companies were never repaid, resulting in a substantial loss of the estate’s assets. As a result, the court surcharged Feilzer for the principal amount of the loans. The court declined to surcharge Feilzer for the uncollected interest on these loans in the amount of $4,403,255.98, holding that the accrued interest on the loans was not a loss of the estate’s assets which would have otherwise been available. However, in addressing the Attorney General’s next set of objections regarding the so-called missing assets, the court included the uncollected accrued interest to explain, in part, the $10,332,007.89 imbalance in the accounting. As a result, the court reduced the surcharge on these objections by $4,403,255.98, the amount of the accrued interest on the loans. This was an error. As the Attorney General correctly argues, the uncollected, accrued interest on these loans was never part of the estate and thus could not be used to explain the imbalance in the accounting. Accordingly, it is ORDERED that the motion to reargue is granted, and upon reargument, the surcharges awarded for objections 1, 2 and 37 shall be increased from $1,733,751.91 to $6,137,007.89, to reflect the unexplained imbalance in the accounting; and it is further ORDERED that the Clerk shall mail a copy of this order to the parties at the addresses listed below; and it is further ORDERED that the parties shall settle decree. Dated: November 4, 2024
