In re Simon

Appellate Division of the Supreme Court of New York

In re Simon

221 A.D.2d 641, 634 N.Y.S.2d 507, 1995 N.Y. App. Div. LEXIS 12383

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

DecidedNovember 27, 1995

StatusPublished

This text of 221 A.D.2d 641 (In re Simon) 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 Simon, 221 A.D.2d 641, 634 N.Y.S.2d 507, 1995 N.Y. App. Div. LEXIS 12383 (N.Y. Ct. App. 1995).

Pincite

Opinion

—In two separate proceedings pursuant to SCPA 809 (1) (b) to recover on a surety bond that was issued on behalf of the late Eleanor Simon as administratrix of the estate of Jerome M. Simon, the petitioners appeal from (1) an order of the Surrogate’s Court, Kings County (Bloom, S.), dated February 2, 1994, which denied their motion for summary judgment and granted the cross motion of the respondent, National Surety Corporation, for summary judgment dismissing the petition in Proceeding No. 1, and (2) an order of the same court, also dated February 2, 1994, which denied their motion for summary judgment and granted the cross motion of the respondent, National Surety Corporation, for summary judgment dismissing the petition in Proceeding No. 2.

Ordered that the orders are affirmed, with one bill of costs payable by the appellants.

The appellants failed to demonstrate that Eleanor Simon, the widow and administratrix of the estate of the decedent Jerome M. Simon, did not faithfully discharge her trust or obey all lawful decrees and orders regarding the administration of the estate of Jerome M. Simon as provided in the standard surety bond issued on her behalf by the respondent, National Surety Corporation (hereinafter National Surety) (see generally, SCPA 801). Therefore, the Surrogate’s Court properly granted National Surety’s cross motions for summary judgment dismissing the petitions for failure to state causes of action (see, SCPA 809 [1] [b]; United States v Westchester Fire Ins. Co., 478 F2d 133; IB Warren’s Heaton, Surrogate’s Court § 11.17 [1], at 11-46).

Contrary to the appellants’ contention, the plain language of the surety bond reveals that it was issued to ensure the faithful performance of Eleanor Simon only.

In light of our determination, we need not reach the appellants’ remaining contention. Sullivan, J. P., Thompson, Hart and Goldstein, JJ., concur.

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—In two separate proceedings pursuant to SCPA 809 (1) (b) to recover on a surety bond that was issued on behalf of the late Eleanor Simon as administratrix of the estate of Jerome M. Simon, the petitioners appeal from (1) an order of the Surrogate’s Court, Kings County (Bloom, S.), dated February 2, 1994, which denied their motion for summary judgment and granted the cross motion of the respondent, National Surety Corporation, for summary judgment dismissing the petition in Proceeding No. 1, and (2) an order of the same court, also dated February 2, 1994, which denied their motion for summary judgment and granted the cross motion of the respondent, National Surety Corporation, for summary judgment dismissing the petition in Proceeding No. 2.

Ordered that the orders are affirmed, with one bill of costs payable by the appellants.

The appellants failed to demonstrate that Eleanor Simon, the widow and administratrix of the estate of the decedent Jerome M. Simon, did not faithfully discharge her trust or obey all lawful decrees and orders regarding the administration of the estate of Jerome M. Simon as provided in the standard surety bond issued on her behalf by the respondent, National Surety Corporation (hereinafter National Surety) (see generally, SCPA 801). Therefore, the Surrogate’s Court properly granted National Surety’s cross motions for summary judgment dismissing the petitions for failure to state causes of action (see, SCPA 809 [1] [b]; United States v Westchester Fire Ins. Co., 478 F2d 133; IB Warren’s Heaton, Surrogate’s Court § 11.17 [1], at 11-46).

Contrary to the appellants’ contention, the plain language of the surety bond reveals that it was issued to ensure the faithful performance of Eleanor Simon only.

In light of our determination, we need not reach the appellants’ remaining contention. Sullivan, J. P., Thompson, Hart and Goldstein, JJ., concur.

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Bluebook (online)

221 A.D.2d 641, 634 N.Y.S.2d 507, 1995 N.Y. App. Div. LEXIS 12383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-simon-nyappdiv-1995.