In re the Estate of Davis

Appellate Division of the Supreme Court of New York

In re the Estate of Davis

192 A.D.2d 655, 596 N.Y.S.2d 474

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

DecidedApril 19, 1993

StatusPublished

This text of 192 A.D.2d 655 (In re the Estate of Davis) 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 the Estate of Davis, 192 A.D.2d 655, 596 N.Y.S.2d 474 (N.Y. Ct. App. 1993).

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Opinion

—In a probate proceeding, Eliaza Harris, the executor named in the will, appeals from an order of the Surrogate’s Court, Kings County (Bloom, S.), dated March 6, 1991, which denied his motion, denominated as a motion for renewal and reargument, but which was, in effect to vacate an order of the same court, dated November 5, 1990, which sua sponte vacated his authority as preliminary executor.

Ordered that the order is reversed, on the law, with costs payable by the objectant personally, the motion is granted, and the appellant’s authority as preliminary executor is restored.

The sole reason cited by the Surrogate for terminating the preliminary executor’s authority was his failure to renew expired letters of administration. This reason does not fall within the statutory provisions permitting the revocation of a preliminary executor’s authority (see, SCPA 711, 719; Matter of De Beldardino, 77 Misc 2d 253). Furthermore, the record does not contain such a clear showing of serious misconduct which would justify the appellant’s removal (see, Matter of Vermilye, 101 AD2d 865). Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.

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—In a probate proceeding, Eliaza Harris, the executor named in the will, appeals from an order of the Surrogate’s Court, Kings County (Bloom, S.), dated March 6, 1991, which denied his motion, denominated as a motion for renewal and reargument, but which was, in effect to vacate an order of the same court, dated November 5, 1990, which sua sponte vacated his authority as preliminary executor.

Ordered that the order is reversed, on the law, with costs payable by the objectant personally, the motion is granted, and the appellant’s authority as preliminary executor is restored.

The sole reason cited by the Surrogate for terminating the preliminary executor’s authority was his failure to renew expired letters of administration. This reason does not fall within the statutory provisions permitting the revocation of a preliminary executor’s authority (see, SCPA 711, 719; Matter of De Beldardino, 77 Misc 2d 253). Furthermore, the record does not contain such a clear showing of serious misconduct which would justify the appellant’s removal (see, Matter of Vermilye, 101 AD2d 865). Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.

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Bluebook (online)

192 A.D.2d 655, 596 N.Y.S.2d 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-davis-nyappdiv-1993.

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