Matter of Cohen

[*1] Matter of Cohen 2006 NY Slip Op 52445(U) [14 Misc 3d 1208(A)] Decided on December 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2006
Sur Ct, Dutchess County

In the Matter of the Administration Proceeding, Estate of Patricia Cohen a/k/a Patricia Prince Cohen, Deceased.



95419/06



AMEE C. VANTASSELL, ESQ.

VAN DeWATER & VAN DeWATER, LLP

Attorneys for MARTIN J. COHEN

40 Garden Street

P.O. Box 112

Poughkeepsie, New York 12602

MATTHEW J. NOLFO, ESQ.

Attorney for ROBIN S. COHEN

275 Madison Avenue, Suite 1714 New York, New York 10016

NANCY WADE

Distributee

755 Pumpkin Lane

Clinton Corners, New York 12514

James D. Pagones, J.

Patricia Cohen died intestate on May 12, 2006. The decedent was survived by her husband, Martin J. Cohen ("Martin") and two adult children, Robin S. Cohen ("Robin") and Nancy Wade ("Nancy").

On August 14, 2006, Robin filed a petition for letters of administration. Her petition estimates the value of the estate at $900,000.00. On September 28, 2006, Martin filed a petition for temporary letters of administration, as well as for full letters. His petition estimates the value of the decedent's property interests at $245,000.00. Nancy Wade executed and filed a waiver of citation, renunciation and consent that letters of administration issue to her father.

On October 25, 2006, Robin filed a petition requesting temporary letters. She is opposed to her father serving as administrator. The father's age (84), health (stroke victim, blind, and poor hearing), residence (lives in a nursing home) and alleged imprudence with finances are offered as reasons to deny his petition and grant hers. The father denies he is deaf, dumb and blind. He points out without contradiction from Robin that he practiced law in New York for over fifty (50) years prior to retiring and that his daughter has had minimal involvement with either the decedent or himself for several decades. The record is devoid of any information demonstrating that Martin has been the subject of a guardianship proceeding either under Mental Hygiene Law Article 81 or Surrogate's Court Procedure Act Article 17-A ("SCPA").

SCPA §707 identifies the classes of individuals deemed ineligible to serve as fiduciary. The only categories germane to this decision are "want of understanding" or "otherwise unfit for the execution of the office". (SCPA §707[1][e].) Want of understanding usually has a flagrant and blatant quality to it, not here shown. (Turano & Radigan, New York Estate Administration, 2006 edition, §14.02[c].) While Robin raises the inference that her father may have been careless or improvident with respect to financial matters, the record before this court does not support a preliminary finding that those actions were motivated by dishonesty or surreptitious intentions. Therefore, a hearing is unnecessary. (Matter of Caperonis, 95 Misc 2d 690, 793-94 [Surr. Ct., Saratoga County, 1978].)

SCPA §1001 provides the order of priority for granting letters of administration. The [*2]decedent was survived by Martin, who is also entitled to share in the estate. He takes precedence over all others, as there is no reason to find that he has forfeited the right to appointment. (Matter of Salvan, 132 AD2d 662, 664 [2d Dept. 1987]; SCPA §1001[1][a].) It is also noted that he is represented by counsel experienced in the practice of estate law.

Estates, Powers and Trusts Law §4-1.1(a)(1) provides for the distribution of an intestate estate when the decedent is survived by a spouse and issue. The two children can expect to share some portion of the estate with their father when it is in a posture for distribution, unless debts and expenses exceed the assets.

It is evident that antipathy exists between Martin and Robin. Their hostility has not reached a pernicious level so as to render Martin unfit to serve under SCPA §707(1)(e) on the grounds that it jeopardizes the interest of the distributees and the proper administration of the estate. (Matter of Boyle, 224 AD2d 374, 375-76 [1st Dept. 1996].)

The posting of a bond is warranted under the circumstances. The petition of Martin J. Cohen is granted upon the condition he qualifies as required by law. He must file his oath and designation, as well as a bond in the sum of $500,000.00. (SCPA §701[1], [2] and [3].) Letters shall not issue until he fully complies. The petitions of Robin S. Cohen are denied without prejudice to renew in the event of non-compliance by Martin.

On this application, the Court considered the petition of Martin J. Cohen, the two (2) petitions of Robin S. Cohen, affidavit of Robin S. Cohen, affidavit of Martin J. Cohen, affirmation of Amee C. Vantassell, Esq. and memorandum of law submitted by Matthew J. Nolfo, Esq.

Counsel for Martin J. Cohen is directed to submit a decree consistent with the foregoing within ten (10) days from the date of this decision.

The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

December 21, 2006

ENTER

Hon. James D. Pagones, S.C.J.

TO:

122106 decision