In re Markowitz

Appellate Division of the Supreme Court of New York

In re Markowitz

28 A.D.3d 667, 813 N.Y.S.2d 660

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 18, 2006

StatusPublished

This text of 28 A.D.3d 667 (In re Markowitz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Markowitz, 28 A.D.3d 667, 813 N.Y.S.2d 660 (N.Y. Ct. App. 2006).

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Opinion

In a proceeding, inter alia, to impose a surcharge on the deceased conservator/trustee of the Randi Markowitz Supplemental Needs Trust, the surety National Union Fire Insurance Company of Pittsburgh, Pa., appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated February 16, 2005, which granted the petition directed it to pay the surcharge in the event of a default by the estate of the deceased conservator/trustee.

Ordered that the order is modified, on the law, by deleting the final decretal paragraph thereof; as so modified, the order is affirmed, without costs or disbursements.

There is no proof in the record that the appellant, the surety for the deceased conservator/trustee of the subject trust, was ever properly served with the order to show cause and the accompanying petition, received notice of the proceeding, or was afforded any opportunity to appear and defend its interests. Under those circumstances, it was error for the court to include, in the order appealed from, a decretal paragraph specifically directing the appellant to pay the subject surcharges in the event of a default by the estate of the deceased conservator/ trustee. We therefore modify the order by striking the offending decretal paragraph.

The appellant’s remaining contentions, which include substantive defenses to its obligations as surety, need not be addressed at this juncture. Because the order appealed from was entered without any opposition from the principal obligor, i.e., the estate of the deceased conservator/trustee, it is not binding upon the appellant surety, which may contest its liability for the subject surcharges if and when a proceeding is properly commenced against it (see Shapiro v Marstone Distribs., 38 AD2d [668]*668604 [1971]; see also Durable Group v De Benedetto, 85 AD2d 524 [1981]; US., for Use of Vigilanti v Pfeiffer-Neumeyer Constr. Corp., 25 F Supp 403, 405 [1938]). Adams, J.P., Ritter, Rivera and Covello, JJ., concur.

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In a proceeding, inter alia, to impose a surcharge on the deceased conservator/trustee of the Randi Markowitz Supplemental Needs Trust, the surety National Union Fire Insurance Company of Pittsburgh, Pa., appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated February 16, 2005, which granted the petition directed it to pay the surcharge in the event of a default by the estate of the deceased conservator/trustee.

Ordered that the order is modified, on the law, by deleting the final decretal paragraph thereof; as so modified, the order is affirmed, without costs or disbursements.

There is no proof in the record that the appellant, the surety for the deceased conservator/trustee of the subject trust, was ever properly served with the order to show cause and the accompanying petition, received notice of the proceeding, or was afforded any opportunity to appear and defend its interests. Under those circumstances, it was error for the court to include, in the order appealed from, a decretal paragraph specifically directing the appellant to pay the subject surcharges in the event of a default by the estate of the deceased conservator/ trustee. We therefore modify the order by striking the offending decretal paragraph.

The appellant’s remaining contentions, which include substantive defenses to its obligations as surety, need not be addressed at this juncture. Because the order appealed from was entered without any opposition from the principal obligor, i.e., the estate of the deceased conservator/trustee, it is not binding upon the appellant surety, which may contest its liability for the subject surcharges if and when a proceeding is properly commenced against it (see Shapiro v Marstone Distribs., 38 AD2d [668]*668604 [1971]; see also Durable Group v De Benedetto, 85 AD2d 524 [1981]; US., for Use of Vigilanti v Pfeiffer-Neumeyer Constr. Corp., 25 F Supp 403, 405 [1938]). Adams, J.P., Ritter, Rivera and Covello, JJ., concur.

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Bluebook (online)

28 A.D.3d 667, 813 N.Y.S.2d 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-markowitz-nyappdiv-2006.

Opinion

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