In re Estate Basner

37 A.D.3d 459, 829 N.Y.S.2d 612

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2007
• Status: Published

Opinion

In a proceeding to settle the account of William Yale and Albert L. Polon, as executors of the estate of Austin E. Basner, the petitioners appeal from so much of an order of the Surrogate’s Court, Orange County (Slobod, S.), dated February 10, 2006, as denied their cross motion for summary judgment dismissing certain affirmative defenses and objections of Charles Basner and Myra Shrier.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

The Surrogate’s Court properly denied the petitioners’ cross motion for summary judgment dismissing certain affirmative defenses and objections of Charles Basner and Myra Shrier (hereinafter the objectants). In response to the petitioners’ prima facie showing of entitlement to judgment as a matter of law that they retained a qualified attorney and a qualified accountant, the objectants raised triable issues of fact as to the adequacy of the attorney’s performance and the accountant’s performance. In response to the petitioners’ showing that they properly requested a release from the beneficiaries before making payment to them from the residuary estate, the objectants raised an issue of fact as to whether the release was overbroad and inappropriate for only a partial distribution. In response to the petitioners’ showing that they acted prudently in liquidating the decedent’s IRA account that was losing value, the object-ants raised an issue of fact as to whether the estate suffered a loss because of their imprudent handling of the IRA account with regard to taxes (see EPTL 11-2.3 [b] [3] [B]). Since triable issues of fact exist, summary judgment was properly denied (see Matter of Janes, 90 NY2d 41, 50 [1997]; Matter of Skelly, 284 AD2d 336 [2001]).

Contrary to the objectants’ contentions, however, sanctions are not warranted on this appeal under the circumstances of this case (see 22 NYCRR 130-1.1 [c]). Miller, J.P., Spolzino, Covello and Balkin, JJ., concur.