Matter of Stevens

[*1] Matter of Stevens 2005 NY Slip Op 50380(U) Decided on January 4, 2005 Surrogate's Court, Broome County Peckham, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2005
Surrogate's Court, Broome County

In the Matter of the Estate of Carol J. Stevens, Deceased.



2001-0779



Brian Gallagher, Esq.

Law Office of John F. Cenesky, Esq.

Attorney for Estate of Carol J. Stevens

251 Main Street

Johnson City, NY 13790

Mary A. Walsh, Esq.

Assistant Attorney General

Office of the Attorney General of the State of New York

Statutory Representative of Unknown Distributees

44 Hawley Street, 17th Floor

Binghamton, New York 13901

Tel. (607) 721-8795

Eugene E. Peckham, J.

This is a motion by the Attorney General to dismiss a counterclaim interposed in an accounting proceeding.

Jerome Knebel, as public administrator, filed an accounting in this estate. The Attorney General was served with a citation pursuant to SCPA §316 since the decedent had no known distributees. The Attorney General filed objections to the account. In so doing, the Attorney General was acting pursuant to his authority as the statutory representative of the unknown distributees. SCPA §2210(5); Turano, Practice Commentaries, McKinney's Cons. Laws of NY SCPA §2210).

The counterclaim reads as follows: "The Attorney General's Office should be surcharged an amount as set forth by the Court for additional accounting expenses and litigation for a contested final accounting in an approximate sum of $5,000.00, plus disbursements, including experts fees, in addition to the fees set forth in Schedules C and C-1 and as determined by the Court to be legitimate costs and expenses in said contested accounting."

Apparently, the import of the counterclaim is that the Attorney General should be personally liable for the extra expense caused by the filing of objections. The filing of objections is an 'official act' of the Attorney General in his capacity as representative of unknown [*2]distributees, which duty is imposed by statute. The Attorney General is absolutely immune from civil suit when acting in his official capacity Levy v State 86AD2d 574 (1st Dept. 1982) aff'd 58 NY2d 733 (1982).

An attorney may file an answer on behalf of any party to a lawsuit. Here the party is the unknown distributees and the Attorney General is their attorney. In an accounting proceeding the objections are the answer. Harris, New York Estates, 5th ed, §23:27 at p 23-9. Only if the answer is false or frivolous might there be potential liability. Ametco v Beltchev 5AD2d 631 (1st Dept-1958). The objections filed in the present case are neither false nor frivolous and thus there is no liability.

Furthermore any attorney, including the Attorney General when representing unknown distributees, is not generally liable for acts performed in the course of litigation in good faith to protect the interests of the client. Liability may only attach if the attorney acts beyond the scope of his duties as an attorney. The filing of objections to an account is well within the scope of the duties of an attorney. Gifford v Harley 62 AD2d 5 (3rd Dept - 1978).

For all the foregoing reasons, the above stated counterclaim is dismissed. This decision is the order of the Court.

Dated: January 4, 2005___________________________________

Eugene E. Peckham

Surrogate