Matter of Groark

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[*1] Matter of Groark 2006 NY Slip Op 51350(U) [12 Misc 3d 1180(A)] Decided on July 11, 2006 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 11, 2006
Sur Ct, Dutchess County

In the Matter of the Estate of Gerard K. Groark, Deceased.



94498/05

James D. Pagones, J.

This is a small estate filed under SCPA Article 13. The voluntary administratrix has filed a motion pursuant to CPLR Rule 3212 for an order precluding Capital One Mastercard, a creditor of the decedent, from providing any testimony with regard to its claim and granting the estate summary judgment dismissing the claim. The motion is unopposed. It is resolved as follows.

The file reveals that an affidavit pursuant to SCPA §1304(3) was filed with the court on July 14, 2005, along with the decedent's will, dated September 25, 2001. The voluntary administratrix is the executrix named in the will. As such, she has first right to act. (SCPA §1303[b].) Capital One Mastercard is one of the creditors identified in paragraph 10 of the affidavit. The claim is for $1,295.41. On or about November 15, 2005, the voluntary administratrix served a notice of rejection of claim pursuant to SCPA §§1806, 1808(3). The notice, however, does not state the reasons therefor. (SCPA §1806[2].)

Thereafter, on or about March 7, 2006, counsel for the voluntary administratrix served a notice pursuant to CPLR Article 31 to take the deposition upon oral examination of a representative of the creditor with personal knowledge of the account. The examination was scheduled to occur on April 12, 2006 at 10 a.m. at the office of counsel for the voluntary administratrix. The claimant defaulted in appearing. On April 3, 2006, the voluntary administratrix filed her report and account in settlement of the estate pursuant to SCPA §1307(2). The unopposed motion under consideration was served on June 22, 2006.

SCPA Article 13 relates to settlement of small estates (defined as the decedent's personal property having a gross value of $20,000.00 or less with certain exclusions [SCPA §1301(1)]). It shall be given a liberal construction. (SCPA §1312.) Payment of certain debts without administration pursuant to SCPA §1310 is not applicable here. The voluntary administratrix has utilized SCPA Article 18 in rejecting the claim. The statute provides that "whenever a fiduciary rejects a claim in whole or in part all issues relating to the validity and enforceability of the claim shall be tried and determined upon the judicial settlement of his account." (SCPA §1808[1].)

Several key points are evident. The voluntary administratrix rejected the claim of Capital One Mastercard in a timely fashion. The lack of a reason is not prejudicial to the creditor in these circumstances. Formal judicial settlement of the report and account of the voluntary administratrix does not apply to a small estate. The voluntary administratrix properly used a [*2]discovery device in an attempt to obtain information to determine the validity of the claim. (SCPA §102.) The claimant defaulted in that regard, as well as in failing to oppose this motion.

Based on the foregoing, the motion to preclude and for judgment dismissing the claim of Capital One Mastercard is granted.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

July 12, 2006ENTER

HON. JAMES D. PAGONES, S.C.J.

TO:Carl S. Wolfson, Esq.

Wolfson, Greller, Egitto

& Klein, LLP

Attorneys for Voluntary Administratrix

11 Market Street

Poughkeepsie, New York 12601

Capital One Mastercard

c/o Estate Information Services

2323 Lake Club Drive, Suite 300

Columbus, Ohio 43232

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