Matter of Aragona

[*1] Matter of Aragona 2006 NY Slip Op 51930(U) [13 Misc 3d 1221(A)] Decided on October 11, 2006 Sur Ct, Nassau County Riordan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2006
Sur Ct, Nassau County

In the Matter of the Probate of the Will of Dominick Aragona, Deceased.



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The appearance of counsel is as follows:

Siegel & Seigel, P.C.(Attorneys for Petitioners)

One Penn Plaza, Suite 4632

New York, NY 10119

John M. McFaul, Esq. (Attorney for Mark Aragona)

19 West Main Street

Oyster Bay, NY 11771

Rebecca S. Levine, Esq. (Attorney for Betty Elias Aragona)

200 East 27t Street, Suite No.8C

New York, NY 10016

John B. Riordan, J.

In this probate proceeding, before the court is a motion to revoke preliminary letters

testamentary.

The decedent Dominick Aragona was survived by his wife Betty and three adult children of a prior marriage, Donna, Michael, and Mark. The will leaves Betty the smallest amount, if any, required to be given her under the laws of the State of New York, with the additional statement that "[i]t is my desire and intent that my wife be disinherited by me to the fullest extent permitted by law." Mark, the movant herein, is bequeathed one dollar. The bulk of the administrable estate is bequeathed to Donna and Michael.

Although Betty has not filed any papers with regard to the instant motion, it is evident that she and Mark, the movant, are united in interest. The decedent allegedly died as the result of his exposure to asbestos, and the primary area of conflict involves the pending litigation for his injuries related thereto. Approximately 11 months prior to his death, decedent purportedly assigned the entire recovery in that litigation to Donna, as consideration for her caring for him during his final months. Mark argues that Donna's preliminary letters should be revoked because: (1) she failed to disclose the existence of the cause of action for personal injury on the probate petition, and (2) she is acting in her own interests against the interests of the other

beneficiaries and distributees by refusing to either amend the complaint or bring a new complaint for the decedent's wrongful death.

Donna responds that she did not include the personal injury action as an asset of the estate on the probate petition because it was not an asset of the estate, having been validly assigned to her by her father before his death. She also asserts that she has not pursued a wrongful death recovery because, she alleges, Betty abandoned the decedent before his death and therefore suffered no pecuniary loss. While Donna may ultimately prevail on that argument, she is clearly acting in furtherance of her own interests against the interests of the other distributees by refusing to seek to amend the complaint or to bring a separate action for wrongful death.

SCPA 711(2) provides that letters may be revoked where, among other things, the fiduciary has wasted assets of the estate. The term "waste" in SCPA 711(2) can refer to either action or inaction on the part of the fiduciary which results in some injury to the estate (Warren 's Heaton on Surrogate's Courts, § 33.10[4][b], 7th ed.). Furthermore, where the fiduciary acts in his or her own self-interest to the detriment of the estate or its beneficiaries, revocation of letters is an appropriate remedy (Matter of Rothko, 43 NY2d 305 [1977]), but one that should be employed sparingly (Matter of Romano, 8 Misc 3d 1010A; Matter of Israel, 64 Misc 2d 1035 [*2][1970]). Furthermore, preliminary letters, as opposed to permanent letters, may be revoked for any reason deemed by the court to be in the best interests of the estate (SCPA 1412[6][c]).

Accordingly, the motion to revoke preliminary letters is granted, unless the preliminary executor establishes to the satisfaction of the court within 30 days hereof that she has either commenced a separate action for the decedent's wrongful death or has moved to amend the complaint to add a cause of action for wrongful death. In any event, the letters shall be restricted to prevent the preliminary executor from compromising the actions for pain and suffering and wrongful death except on further order of this court (SCPA 1412[4][a]; see Matter of Gulbrandsen, 11 Misc 3d 1073A [2006]; Warren's Heaton on Surrogate's Courts, §40.10, 7th ed.).

This decision constitutes the order of the court and no additional order need be submitted.

Dated: October 11, 2006JOHN B. RIORDAN

Judge of the

Surrogate's Court