Matter of Lewis 2017 NY Slip Op 33569(U) February 14, 2017 Surrogate's Court, Bronx County Docket Number: File No. 2013-293/A, B, C 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
FILED, February/+ ,·2017 FEB 14 ion eUR"OG~t■•lldOUAT ESTATE OF CLARENCE LEWIS, also known as couNTVM . . .>I CLARENCE L. LEWIS, Deceased File No.: 2013~293/A, B, C I
In this estate, before the court is a combined petition and ~ L motion by an alleged son of the decedent, Craig Lewis (File No.: 2013-
293/C), filed November, 2016 seeking, inter alia, (1) to revoke the letters of
administration that issued to another son, Barrett Lewis, on March 18, 2013,
and the .appointment of Craig's attorney or, alternatively, the Public
Administrator, as administrator d.b.n. of the estate; (2) an order allowing I
Craig to enter and live at one of five alleged apartments in a brownstone
building owned by the estate in which Barrett also has an apartment and
allegedly obtains rental income; and, (3) an order granting Craig summary
judgment finding he is a son/distributee of the decedent entitled to one half
of any personal property or realty held by the estate. There is another
pending proceeding, filed by an alleged daughter, Cynthia, also seeking to
revoke letters of administration that issued to Barrett (2013-293/A), and the
[* 1] 2
appointment of herself as administrator d.b.n. (2013-293/B). The alleged
daughter served and filed objections to Craig's combined petition and motion
and opposes those portions thereof as seek the appointment of the Public ··
Administrator, summary judgment on the issue of his standing as a
\ distributee and related relief. Barrett, who is now proceeding pro se; has not
filed o~ served any objections or opposition to Craig's combined
petition/motion. The determination of Craig's combined petition/motion
hinges on the procedural background of this case and the present status of i
the issues raised in all these proceedings which, briefly, are reviewed herein.
In 2013, Barrett petitioned for letters of administration claiming
that he was the decedent's sole distrib,utee and, as a result, letters of r administration issued to him limited only by SCPA 805 (3) (File No.: 2013-
293); however, subsequently in 2014, the alleged daughter, Cynthia, filed her
petition seeking to revoke the letters of administration that issued to Barrett f (File No.: 2013-293/A) and the appointment of herself as administrator d.b.n. l f
(File No: 2013-293/B). Cynthia's petitions were supported by Craig, and both I claimed that Barrett knew they were the decedent's children and intentionally
omitted them from his petition. l E l
By decision and order dated April 8, 2016, this court, inter alia,
granted separate motions by Cynthia and Barrett, who was then represented
by counsel, to compel all parties to submit to a "sibling full DNA test" ~t an
established laboratory. The results of that test demonstrated that Craig and
Barrett are paternal half siblings and Cynthia is not paternally related to I t r
[* 2] 3
them; however, as this court nbted previously, the paternal half siblingship
test, standing alone, does not establish a link to the decedent directly, so it
cannot be conclusive on the issue of the decedent's paternity of them (see
Matter of Lewis, NYLJ, April 15, 2016, at 21, col 5 [Sur Ct, Bronx County
2016)). Moreover, although Cynthia was excluded as a paternal half sibling
of Craig and Barrett by that DNA test, the proof she has presented to date
in opposition to Craig's combined petition/motion creates issues of fact with
respect to the applicability of the open and notorious requirement to her
status as a distributee (see EPTL 4-1.2 [a] [2] [Cl).
In the same April 8, 2016 decision and order, this court also
directed Barrett to submit an application on notice to all parties amending his
letters of administration to collect $17,000 in royalties and to indicate therein
any changes to the amount of rents collected at the premises or any
additional royalties that may be due, if any, to enable the court to determine
whether a bond should be posted (see Matter of Lewis, NYLJ, June 1, 2016,
at 21, col 5). Barrett never complied with that directive and, subsequently,
his attorney moved and was granted leave to withdraw as his counsel.
Although Barrett was given ample time to obtain a new attorney, he is now
proceeding pro se, and his petition remains unamended despite the court's
directive. In addition, there have been allegations by Cynthia that Barrett is
disqualified f~om acting as administrator because he is a felon, and Craig has
conceded he is disqualified from serving as a fiduciary on that ground (see
SCPA 707). To date, Cynthia has failed to proffer any evidence to support
[* 3] 4
her allegation regarding Barrett and Barrett has appeared in court and
denied the allegation; however, while Barrett was represented by counsel,
on October 6,-2016, all parties stipulated, inter alia, to be fingerprinted for a
history of felony convictions, which has never occurred. At about the same !:..
time that Barrett's counsel subsequently sought and was granted leave to
withdraw, in November, 2016, Craig served and filed the instant combined
petition/motion (File No.: 2013-293/C).
Based on the procedural posture of the litigation and in light of
Craig's combined petition/motion, on February 2, 2017 the court ruled on the
record in open court that the branch of the Craig's combined petition/motion
seeking, inter alia, to revoke the letters of administration that issued to
Barrett and the appointment of Craig's attorney as administrator d.b.n., or
alternatively, the appointment of the Public Administrator as administrator
d.b.n., to the extent sought by motion, was denied without prejudice to
renewal. To the extent that Craig's application is a petition seeking the '
revocation of Barrett's letters of administration, it will be consolidated for trial
with Cynthia's revocation and appointment applications. The ultimate issues
as to the identity of the decedent's distributees and their qualifications and t ''f- eligibility to serve is dispositive of the applications seeking a determination
of who, if not Barrett, should serve as administrator d.b.n. of the estate. lr Nonetheless, as the proceedings have not progressed to trial
and there may be a possible dissipation and waste of assets by the
administrator, Barrett, who also appears to demonstrate a want of
[* 4] 5
· understanding, failed to amend the petition pursuant to court order and is
now proceeding pro se (see SCPA 711), the court finds that the
administration of the estate requires immediate attention. Accordingly, under
the circumstances presented, the court directed the issuance of letters of ;
temporary administration to the Public Administrator, limited to marshaling
assets and paying debts, upon his filing an oath and designation with the
court.
Free access — add to your briefcase to read the full text and ask questions with AI
Matter of Lewis 2017 NY Slip Op 33569(U) February 14, 2017 Surrogate's Court, Bronx County Docket Number: File No. 2013-293/A, B, C 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
FILED, February/+ ,·2017 FEB 14 ion eUR"OG~t■•lldOUAT ESTATE OF CLARENCE LEWIS, also known as couNTVM . . .>I CLARENCE L. LEWIS, Deceased File No.: 2013~293/A, B, C I
In this estate, before the court is a combined petition and ~ L motion by an alleged son of the decedent, Craig Lewis (File No.: 2013-
293/C), filed November, 2016 seeking, inter alia, (1) to revoke the letters of
administration that issued to another son, Barrett Lewis, on March 18, 2013,
and the .appointment of Craig's attorney or, alternatively, the Public
Administrator, as administrator d.b.n. of the estate; (2) an order allowing I
Craig to enter and live at one of five alleged apartments in a brownstone
building owned by the estate in which Barrett also has an apartment and
allegedly obtains rental income; and, (3) an order granting Craig summary
judgment finding he is a son/distributee of the decedent entitled to one half
of any personal property or realty held by the estate. There is another
pending proceeding, filed by an alleged daughter, Cynthia, also seeking to
revoke letters of administration that issued to Barrett (2013-293/A), and the
[* 1] 2
appointment of herself as administrator d.b.n. (2013-293/B). The alleged
daughter served and filed objections to Craig's combined petition and motion
and opposes those portions thereof as seek the appointment of the Public ··
Administrator, summary judgment on the issue of his standing as a
\ distributee and related relief. Barrett, who is now proceeding pro se; has not
filed o~ served any objections or opposition to Craig's combined
petition/motion. The determination of Craig's combined petition/motion
hinges on the procedural background of this case and the present status of i
the issues raised in all these proceedings which, briefly, are reviewed herein.
In 2013, Barrett petitioned for letters of administration claiming
that he was the decedent's sole distrib,utee and, as a result, letters of r administration issued to him limited only by SCPA 805 (3) (File No.: 2013-
293); however, subsequently in 2014, the alleged daughter, Cynthia, filed her
petition seeking to revoke the letters of administration that issued to Barrett f (File No.: 2013-293/A) and the appointment of herself as administrator d.b.n. l f
(File No: 2013-293/B). Cynthia's petitions were supported by Craig, and both I claimed that Barrett knew they were the decedent's children and intentionally
omitted them from his petition. l E l
By decision and order dated April 8, 2016, this court, inter alia,
granted separate motions by Cynthia and Barrett, who was then represented
by counsel, to compel all parties to submit to a "sibling full DNA test" ~t an
established laboratory. The results of that test demonstrated that Craig and
Barrett are paternal half siblings and Cynthia is not paternally related to I t r
[* 2] 3
them; however, as this court nbted previously, the paternal half siblingship
test, standing alone, does not establish a link to the decedent directly, so it
cannot be conclusive on the issue of the decedent's paternity of them (see
Matter of Lewis, NYLJ, April 15, 2016, at 21, col 5 [Sur Ct, Bronx County
2016)). Moreover, although Cynthia was excluded as a paternal half sibling
of Craig and Barrett by that DNA test, the proof she has presented to date
in opposition to Craig's combined petition/motion creates issues of fact with
respect to the applicability of the open and notorious requirement to her
status as a distributee (see EPTL 4-1.2 [a] [2] [Cl).
In the same April 8, 2016 decision and order, this court also
directed Barrett to submit an application on notice to all parties amending his
letters of administration to collect $17,000 in royalties and to indicate therein
any changes to the amount of rents collected at the premises or any
additional royalties that may be due, if any, to enable the court to determine
whether a bond should be posted (see Matter of Lewis, NYLJ, June 1, 2016,
at 21, col 5). Barrett never complied with that directive and, subsequently,
his attorney moved and was granted leave to withdraw as his counsel.
Although Barrett was given ample time to obtain a new attorney, he is now
proceeding pro se, and his petition remains unamended despite the court's
directive. In addition, there have been allegations by Cynthia that Barrett is
disqualified f~om acting as administrator because he is a felon, and Craig has
conceded he is disqualified from serving as a fiduciary on that ground (see
SCPA 707). To date, Cynthia has failed to proffer any evidence to support
[* 3] 4
her allegation regarding Barrett and Barrett has appeared in court and
denied the allegation; however, while Barrett was represented by counsel,
on October 6,-2016, all parties stipulated, inter alia, to be fingerprinted for a
history of felony convictions, which has never occurred. At about the same !:..
time that Barrett's counsel subsequently sought and was granted leave to
withdraw, in November, 2016, Craig served and filed the instant combined
petition/motion (File No.: 2013-293/C).
Based on the procedural posture of the litigation and in light of
Craig's combined petition/motion, on February 2, 2017 the court ruled on the
record in open court that the branch of the Craig's combined petition/motion
seeking, inter alia, to revoke the letters of administration that issued to
Barrett and the appointment of Craig's attorney as administrator d.b.n., or
alternatively, the appointment of the Public Administrator as administrator
d.b.n., to the extent sought by motion, was denied without prejudice to
renewal. To the extent that Craig's application is a petition seeking the '
revocation of Barrett's letters of administration, it will be consolidated for trial
with Cynthia's revocation and appointment applications. The ultimate issues
as to the identity of the decedent's distributees and their qualifications and t ''f- eligibility to serve is dispositive of the applications seeking a determination
of who, if not Barrett, should serve as administrator d.b.n. of the estate. lr Nonetheless, as the proceedings have not progressed to trial
and there may be a possible dissipation and waste of assets by the
administrator, Barrett, who also appears to demonstrate a want of
[* 4] 5
· understanding, failed to amend the petition pursuant to court order and is
now proceeding pro se (see SCPA 711), the court finds that the
administration of the estate requires immediate attention. Accordingly, under
the circumstances presented, the court directed the issuance of letters of ;
temporary administration to the Public Administrator, limited to marshaling
assets and paying debts, upon his filing an oath and designation with the
court.
The remaining branches of Craig's petition/motion, to the extent
they seek summary judgment on the issue of his status as a distributee and
an order directing that he be able to enter and live at an apartment at the
estate premises and be paid one half of the proceeds in the estate is also
denied without prejudice to renewal, due to issues of fact for trial with respect
to the identity of all of the decedent's distributees. The proceedings by
Cynthia seeking to revoke Barrett's letters of administration (File No.: 2013-
293/A), for the appointment of herself as administrator d.b.n. (File No.: 2013-
293/B), the proceeding by Craig insofar as it seeks to revoke Barrett's letters
of administration (File No.: 2013-i93/B), and all issues relating to the identity
of the decedent's distributees and their qualification and eligibility to serve as
fiduciary of the estate are adjourned to April 4, 2017, for a pre-trial l f ~ f
conference. Prior to that time, any party may serve and file a note of issue,
certificate of readiness and statement of issues. I The court's rulings 'on the record on February 2, 2017 and this
decision constitute the order of the court. The Chief Clerk shall mail a copy
[* 5] 6
of this decision and order to all parties or their counsel and to the Public
Administrator.
I I- I I b r t_ '
I- I
[* 6]