Matter of Kennedy

Appellate Division of the Supreme Court of New York

Matter of Kennedy

122 A.D.3d 548, 998 N.Y.S.2d 18

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

DecidedNovember 25, 2014

Docket13618 32A/10

StatusPublished

Cited by1 cases

This text of 122 A.D.3d 548 (Matter of Kennedy) 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

Matter of Kennedy, 122 A.D.3d 548, 998 N.Y.S.2d 18 (N.Y. Ct. App. 2014).

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Opinion

Appeal from order, Surrogate’s Court, New York County (Nora Anderson, S.), entered on or about June 12, 2013, which dismissed the petition to compel an accounting by respondent executor, unanimously dismissed, without costs, as moot.

Shortly after this appeal was perfected, the executor elected to petition the Surrogate’s Court to obtain a formal judicial settlement of the estate and trust account under SCEA 2208.

*549 Were we to consider the merits, we would find that the Surrogate properly extended sua sponte the executor’s time to answer the petition (see generally Shure v Village of Westhampton Beach, 121 AD2d 887 [1st Dept 1986]). The elderly executor was hospitalized and subsequently underwent rehabilitation for a broken hip and elbow in or about the time the answer was due. Further, during the relevant time period, the parties attempted to resolve their disputes during court conferences with an intent to avoid additional legal expense for the estate and trust. To the extent law office failure accounted for the delay in serving an answer, that is an additional basis for finding the executor’s excuse reasonable (see Shure, 121 AD2d at 888; Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]).

We would find further that the Surrogate properly determined at the time that it was in the best interests of the estate and trust to deny the petition to compel an accounting (see generally Matter of Taber, 96 AD2d 890 [2d Dept 1983]). Petitioner argued only generally that the as yet unsubstantiated administration expenses appeared high and potentially threatened her interest in the estate and trust, and she failed to show that she was precluded from obtaining the executor’s administrative records. Moreover, there is evidence to support a finding that petitioner has no interest in the estate and trust.

Concur — Friedman, J.P, Renwick, Moskowitz, Richter and Manzanet-Daniels, JJ.

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Appeal from order, Surrogate’s Court, New York County (Nora Anderson, S.), entered on or about June 12, 2013, which dismissed the petition to compel an accounting by respondent executor, unanimously dismissed, without costs, as moot.

Shortly after this appeal was perfected, the executor elected to petition the Surrogate’s Court to obtain a formal judicial settlement of the estate and trust account under SCEA 2208.

*549 Were we to consider the merits, we would find that the Surrogate properly extended sua sponte the executor’s time to answer the petition (see generally Shure v Village of Westhampton Beach, 121 AD2d 887 [1st Dept 1986]). The elderly executor was hospitalized and subsequently underwent rehabilitation for a broken hip and elbow in or about the time the answer was due. Further, during the relevant time period, the parties attempted to resolve their disputes during court conferences with an intent to avoid additional legal expense for the estate and trust. To the extent law office failure accounted for the delay in serving an answer, that is an additional basis for finding the executor’s excuse reasonable (see Shure, 121 AD2d at 888; Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]).

We would find further that the Surrogate properly determined at the time that it was in the best interests of the estate and trust to deny the petition to compel an accounting (see generally Matter of Taber, 96 AD2d 890 [2d Dept 1983]). Petitioner argued only generally that the as yet unsubstantiated administration expenses appeared high and potentially threatened her interest in the estate and trust, and she failed to show that she was precluded from obtaining the executor’s administrative records. Moreover, there is evidence to support a finding that petitioner has no interest in the estate and trust.

Concur — Friedman, J.P, Renwick, Moskowitz, Richter and Manzanet-Daniels, JJ.

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Bluebook (online)

122 A.D.3d 548, 998 N.Y.S.2d 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-kennedy-nyappdiv-2014.

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