Matter of Sfouggatakis

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[*1] Matter of Sfouggatakis 2009 NY Slip Op 50595(U) [23 Misc 3d 1105(A)] Decided on April 7, 2009 Sur Ct, Kings County Johnson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 7, 2009
Sur Ct, Kings County

In the Matter of the Estate of Olga Sfouggatakis, Deceased.



4372/2004



For movant (Nicholas Sfouggatakis):

Coritsidis, Sotirakis and Saketos, PLLC

25-61 Steinway Street

Long Island City, New York 11103

For executor (George Sfouggatakis):

Ira K. Miller, Esq.

26 Court Street, Suite 400

Brooklyn, New York 11242

Diana A. Johnson, J.



This order to show cause was brought by the decedent's son, Nicholas Sfouggatakis seeking an order vacating the probate decree dated June 13, 2005, setting a date for examinations pursuant to SCPA 1404 and staying the distribution of assets.

The decedent died on August 11, 2004 survived by her husband (Andrew Sfouggatakis) and four children: Nicholas A. Sfouggatakis (Nicholas), George Sfouggatakis (George), Adrianne Sfouggatakis Balopitos and John Sfouggatakis. The decedent's will was admitted to probate in this court on June 13, 2005 and was executed jointly with the decedent's husband, Andrew Sfouggatakis. Letters testamentary were granted to the decedent's son, George. The will leaves the decedent's entire estate to her husband who later died on December 9, 2007.

Nicholas argues that the probate decree should be vacated because George failed to obtain jurisdiction over him during the probate proceeding. He asserts that he was entitled to service of process in the probate proceeding as a distributee of this estate and that his siblings knew that he had permanently left the United States to reside in Greece. He shows that the citation was served at an address in Florida.

George, through his attorneys, argues that the motion should be denied. The citation was served by certified mail at Nicholas' last known address and was not returned as undelivered. George further argues that Nicholas lacked the standing to object to the will pursuant to a settlement agreement dated February 3, 2003 and an Order of the Honorable Michael L. Pesce dated August 25, 2003, authorizing the co-Guardians of the property of Andrew Sfouggatakis to enter into it. In said agreement, Nicholas waives all claims to the estate and all his inheritance [*2]rights under the laws of intestacy as well as any right to object to the probate. The settlement agreement reads, in pertinent part, as follows:

"NICHOLAS A. SFOUGGATAKIS . . . waive[s] any and all claims to the estate of ANDREW SFOUGGATAKIS and OLGA SFOUGGATAKIS. NICHOLAS A. SFOUGGATAKIS waives any right to object to the probate of the aforementioned will executed by the Incapacitated Persons on February 20, 1997. In the event the will is held to be invalid by a court of competent jurisdiction, NICHOLAS A. SFOUGGATAKIS assigns any and all rights of inheritance under the laws of intestacy of the State of New York to his siblings, GEORGE SFOUGGATAKIS, ADRIANNE SFOUGGATAKIS BALOPITOS, and JOHN SFOUGGATAKIS, in equal shares. It is expressly understood that this agreement is entered into contingent upon NICHOLAS A. SFOUGGATAKIS waiving his rights of inheritance in the future estates of ANDREW SFOUGGATKIS and OLGA SFOUGGATKIS and agreeing to the probate of the will of February 20, 1997."

The decision to vacate a probate decree is in the discretion of the surrogate (Matter of Martorano, 87 AD2d 592 [2d Dept 1982]; SCPA 209 [10]). Only a person who is a proper or necessary party to the probate proceeding may apply for vacatur (Matter of Elson, 94 Misc 2d 983 [Sur Ct, New York County 1978]), such as the decedent's distributees (SCPA 1403). An application to vacate a probate decree is granted only in extraordinary circumstances because vacatur of a decree disrupts the orderly administrative process and creates uncertainty and nonfinality with respect to judicial proceedings (Matter of White, 16 Misc 2d 22 [Sur Ct, Cattaraugus County 1959]; Matter of Gori, 129 Misc 541 [Sur Ct, Bronx County 1927]; Matter of Stern, NYLJ, Jul. 20, 1994, at 26, col 3 [Sur Ct, New York County]).

Both parties each discuss the court's jurisdiction in their papers. Nicholas alleges that he was improperly served and argues that the court lacked jurisdiction to enter into the probate decree. George argues that he followed the statutory mandates by serving Nicholas at his last known address and the certified mail was not returned. Nicholas further argues that, even though the court need not "delve" into the merits of his objections, he has a meritorious objection to the probate of the will in that the decedent lacked the capacity to make a will at the time that the will was executed.

The court agrees that a probate decree may be vacated where jurisdiction has not been obtained over a necessary party and that where jurisdiction is lacking the court need not reach the merits of the aggrieved party's claims. In order to vacate a decree in such situations, an aggrieved party need show nothing more than that the court lacked jurisdiction over him (Matter of Roe, 281 NY 541, 547 [1939]; Matter of Killan, 172 NY 547, 558-59 [1902], Matter of Rank, 14 AD2d 644 [3d Dept 1961]; Matter of Lord, 90 Misc 222 [Sur Ct, Westchester County 1915]; Matter of Monroe, NYLJ, Jun. 20, 2002, at 23, col 2 [Sur Ct, New York County). Such a decree is void ab initio as to him and cannot bind him to any of its provisions (Warren's Heaton, Surrogate's Courts 43.05 [1][a], at 43-36, 43-37 [7th ed.]).

However, in this case, before the court reaches the issue of jurisdiction, the court must the initial issue of Nicholas' standing to make this application. A will cannot be set aside by one who, though there be probability of success for his efforts, still could not legally take as his own any part of estate if he succeeded in establishing decedent died intestate (Estate of Heye, 149 [*3]Misc 890 [Sur Ct, Monroe County 1933] affd 241 App Div 907 [4th Dept 1934]). The interest in the property or estate must be pecuniary (Matter of Brumer, 69 AD2d 438 [2d Dept 1979], appeal dismissed 48 NY2d 667 [1979]). An interest resting on sentiment or sympathy, or on any basis other than the gain or loss of money or its equivalent, is not sufficient (Matter of Davis, 182 NY 468, 472 [1905]). The adverse consequences must result directly from the admission to probate of the will (Matter of Turner, 86 Misc 2d 132 [Sur Ct, Albany County 1976]).

Nicholas has waived and/or assigned any right to any interest in this estate in a settlement agreement. He also waived any right that he had to object to the will. The court notes that neither party has contested or challenged the validity of this agreement. In fact, the issue appears to be not that the agreement is invalid, but that there has been a default in some of the obligations of the agreement, in which case, the matter should be brought before the Supreme Court for enforcement, where the parties entered into the agreement. In any event, were this probate still pending, Nicholas would have no standing to file objections or challenge the proffered instrument, as those rights were waived in the settlement agreement. If a party lacks the standing to challenge the will during a probate proceeding, a party would likewise lack the standing to challenge the will after it has been admitted to probate (Estate of O'Daniels, 67 Misc 2d 571 [Sur Ct, Tompkins County 1971]). Therefore, inasmuch as Nicholas would have no standing to contest the will prior to it being admitted to probate, he has no standing to contest the will now.

Accordingly, the within order to show cause is denied in its entirety [FN1].

This constitutes the decision and order of the court.

__________/s/____________

HON. Diana A. Johnson

S u r r o g a t e

Dated:Brooklyn, New York

April7, 2009 Footnotes

Footnote 1: The co-guardians of the decedent's husband filed and recorded a renunciation dated May 5, 2005 upon the consent of Supreme Court Justice Michael L. Pesce by Decision dated May 6, 2005, wherein they renounced $1,600,000 of his claim to the decedent's estate on his behalf. In his affidavit, Nicholas requests that the court vacate the disclaimer as the co-guardians failed to serve him with notice of said disclaimer. Meanwhile, his attorney in his affirmation, suggests that because of the tax ramifications, the disclaimer should not be vacated, but that the sum should be placed in a constructive trust. As neither request is enunciated in the order to show cause, the court declines to address the issue except to note that EPTL 2-1.11 directs service upon parties whose interests are advanced by the renunciation. Inasmuch as Nicholas waived all of his rights to this estate, he had no interests to advance in this estate and thus was not entitled to notice.



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