Matter of Defabbia

[*1] Matter of Defabbia 2006 NY Slip Op 51641(U) [13 Misc 3d 1202(A)] Decided on August 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2006
Sur Ct, Dutchess County

VOLUNTARY ADMINISTRATION PROCEEDING, ESTATE OF JERI DEFABBIA, Deceased.



95294/06



THOMAS E. DIETZ, ESQ.

DIETZ & DIETZ, LLP

Attorneys for STEPHEN DeFABBIA

Two Cannon Street, Suite 207

Poughkeepsie, New York 12601

JEROLD S. SLATE, ESQ.

Attorney for TERRY IORIO DeFABBIA

303 Mill Street

Poughkeepsie, New York 12601

PAMELA BARRACK

Commissioner of Finance

of Dutchess County

County Office Building

22 Market Street

Poughkeepsie, New York 12601

James D. Pagones, J.

The decedent died intestate on March 18, 2006. The surviving distributees are her mother and father. They are emotionally disconnected and physically living separate and apart.

Each parent has filed an affidavit in relation to settlement of their daughter's estate under SCPA Article 13. The value of decedent's personal property is estimated at $13,585.00. Known liabilities, including a claim by the father amounting to $3,000.00, total $8,863.00.

The record in this small estate unequivocally indicates that the parents are completely estranged.

A fiduciary must be fair and even-handed in the treatment of estate beneficiaries whether they take under a will or by way of intestate administration. (Matter of Muller, 24 NY2d 336, 341 [1969]; Turano & Radigan, New York Estate Administration, §14.03[b][2006 Edition].) The uncontradicted mistrust and acrimony between the surviving parents strongly suggests that neither one is capable of administering this small estate according to that standard. Therefore, the court shall exercise its equitable authority (SCPA §201[2]&[3]) and appoint a neutral party to serve as voluntary administrator. The Dutchess County Commissioner of Finance is designated for that purpose. (SCPA §1303[a].) She shall serve without giving a bond (SCPA §1304[2].) Nor shall she be required to file an oath and designation. (SCPA §1304.)

On these applications, the court considered the Article 13 affidavits filed by each parent, together with supporting documentation, as well as the minutes of their appearances before the court.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

August 29, 2006

ENTER [*2]

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

TO:

082806 decision&order