Matter of Allen

2015 NY Slip Op 33014(U)

• Court: Surrogate's Court, Bronx County
• Decided: January 15, 2015
• Docket: Index No. 2013-973
• Status: Unpublished
• Author: Nelida Malave-Gonzalez

Opinion

Matter of Allen 2015 NY Slip Op 33014(U) January 15, 2015 Surrogate's Court, Bronx County Docket Number: Index No. 2013-973 Judge: Nelida Malave-Gonzalez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SURROGATE'S COURT, BRONX COUNTY

L ESTATE OF GLADYS ALLEN, Deceased File No.: 2013-973

In this contested administration proceeding in which the Public I

Administrator petitions for letters of administration and a cross petition was f I

filed by two alleged paternal cousins of the decedent, the purported

designees of a niece and nephew of the decedent who are allegedly the only

distributees of this estate, the Public Administrator moves, pursuant to CPLR f 3212, for summary judgment dismissing the cross petition and the objections

to his petition. No opposition was filed to the motion.

The decedent died intestate on February 26, 2013 at the age

of 75. Both petitions list the niece and nephew as her only distributees. In

support of the cross petition the cousins attempted to obtain a renunciation,

wavier and consent from the nephew designating the cousins; however, it

was not in proper form, as it lacked an apostille. As there was never any

waiver and consent by the niece, and the renunciation by the nephew was

defective, the cross petitioner's then cited both the nephew and niece on the ·

cross petition .. Prior to filing this motion for summary judgment, the Public,

Administrator served and filed a note of issue, certificate of readiness and

statement of issues seeking an order dismissing the objections and denying

the cross petition. Both petitions were set down for a pre.trial conference on

[* 1] their September 25, 2014. On that date, neither the cross petitioners nor er 1,6, counsel appeared; the pre-trial conference was adjourned to Octob When 2014, and counsel for the cross petitioners was notified of that date. was the cousins failed to appear on October 16, 2014 the cross petition if the marked "off-calendar," the court stated on the record in open court that date, cross-petition was not restored to the calendar within 30 days of that

it would be subject to dismissal and the court set a new pre trial conference s on date of December 16, 2014. No one appeared on behalf of the cousin the the December 16, 2014 adjourned date of the pre-trial conference and , in pre-trial conference was marked "adjourned without date." In the interim ent November, 2014, the Public Administrator moved for summary judgm that dismissing the cross petition and the objections to his petition and 2014. motion was marked "submitted without opposition" on November 25, of the Accordingly, although the cross petition is subject to dismissal, in light of pending motion for summary judgment, the court will address the merits

the motion.

The objections to the Public Administrator's application allege both that the niece and nephew are the decedent's only distributees and, as by are non•domiciliary aliens, they are ineligible to receive letters

themselves. The cousins assert that as they are eligible and are related

the decedent, they could serve either by themselves, based upon to

the I ingly consents of the two distributees, or along with the nephew, and accord s' cite they have priority to serve over the Public Administrator. The cousin Slip this court's decision in Matter of Williams (24 Misc 3d 1241 [A], 2009 NY

[* 2] Op 51840 [U] [2009) [Sur Ct, Bronx County 2009]) in support of that - I

proposition.

In the motion for summary judgment the Public Administrator

contends that he has priority over the cousins who are not distributees of this

estate, and the cousins would have priority over the Public Administrator only

if they have the consents of all of the distributees of this estate, which they

do not. Having failed to obtain these consents, the Public Administrator

urges that he is entitled to summary judgment dismissing the objections, and

the grant of his application.

Summary judgment cannot be granted unless it clearly appears

that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31

NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 f l

[1968)). The movant must make a prima facie showing of entitlement to

judgment as a matter of law, tendering sufficient evidence in admissible form

to demonstrate the absence of any material issue of fact (see Alvarez v

Prospect Hosp., 68 NY2d 320 [1986J; Friends of Animals, Inc. v Associated I

' Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant makes out a prima

facie case, the burden shifts to the party opposing the motion to produce

evidentiary proof in admissible form sufficient to establish the existence of tl material issues of fact (see Zuckerman v City of New York, 49 NY2d 557

[19801). Summary judgment is~ drastic remedy which requires that the party

opposing the motion be accorded every favorable inference, and issues of

credibility may not be determined on the motion but must await the trial (see

F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [1 st Dept 20021).

[* 3] The Surrogate's Court "must" grant letters of administration Matter of pursuant to the order of priority set forth in SCPA 1001 (see y 2010]; Pfeferblum, NYLJ, Mar. 24, 2010, at 34, col 3 [Sur Ct, Bronx Count NYLJ, Feb. Matter of Williams, 24 Misc 3d at 1241 [A]; Matter.of McDowell, 1001, in 21, 2006, at 35, col 4 [Sur Ct, Richmond County 2006]). SCPA n, in establishing the order of priority for granting letters of administratio r is the essence provides in subdivision 8 that the Public Administrato I not issue I administrator of last resort, to be appointed only where letters may ! I to a non- under subdivisions 1 through 7 to an eligible distributee or I I ity to give I distributee on the consent of all distributees who have the capac I I an eligible their consents. SCPA 1001 (6) provides, in pertinent part, that ! I non-distributee may be appointed the administrator upon the "conse nt of all f I

a non- eligible distributees." Although SCPA 707 (1) (c) provides that ciaries, domiciliary alien may serve as a fiduciary "with one or more co-fidu any such at least one of whom is resident in this state," it also provides that

appointment "shall be made by the court in its discretion."

Notwithstanding the lack of opposition to the motion, in their 1 I

over the objections the cousins correctly argue that they would have priority utees Public Administrator were they to obtain the consents of the two distrib n was of this estate; however, to date, more than a year after the cross petitio s have filed and the cousins appeared on the original petition, the cousin cousins' failed to obtain consents from the two distributees of this estate. The rt of their reliance on Matter of Williams (24 Misc 3d at 1241 [A]) in suppo nephew is contention that the court could appoint them along with the

[* 4] misplaced, as the holding in that case addressed the appointment of a non-

distributee of an estate based upon the waivers and consents of all eligible

distributees, something the cousins to date have been unable to obtain. In

sum, the cousins have failed to establish that they have priority over the

Public Administrator in this estate.

Accordingly, as the movant demonstrated his entitlement to i I summary judgment, this decision constitutes the order of the court granting

summary judgment to the Public Administrator, dismissing the cousin's

objections and cross petition and granting letters of administration to the

Public Administrator.

Settle decree.

HON. NELIDA MALAVE ....... ~.,~ SURROGATE

s

[* 5]