Matter of Brancato

[*1] Matter of Brancato 2012 NY Slip Op 50539(U) Decided on March 7, 2012 Sur Ct, Nassau County McCarty, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2012
Sur Ct, Nassau County

In the Matter of the Application of Nina M. Anza-Truglio, as Executor of the Estate of Joseph Brancato, a/k/a GIUSEPPE BRANCATO, Deceased, For Leave to Commence a Proceeding, Pursuant to SCPA 809 (1) (a), Fidelity and Deposit Company of Maryland.



353404/C



McCoyd, Parkas & Ronan LLP(for Movant/Executor)

1100 Franklin Avenue

The Penthouse

Garden City, NY 11530

Mait, Wang & Simmons(for Fidelity & Deposit

110 Wall StreetCompany of Maryland)

23rd Floor

New York, NY 10005

Edward W. McCarty, J. III

In this proceeding, the petitioner, Nina M. Anza-Truglio, as executor of the estate of Joseph Brancato, moves for an order pursuant to SCPA 809 (1) (a) granting her leave to commence a proceeding in this court against Fidelity and Deposit Company of Maryland (hereinafter, "Fidelity"), as surety of the bond ( Bond No. CFB 8629-782) issued to Charles W. Benton, Esq. so that the petitioner may in that proceeding seek an order fixing and determining the liability of Fidelity under such bond and directing payment on such bond to the estate. The motion is hereby granted.

Decedent, Joseph Brancato, died a resident of Nassau County on February 23, 2008. A last will and testament executed by decedent on November 7, 1987 was admitted to probate by decree of this court dated February 24, 2009. Letters testamentary issued to the petitioner on February 25, 2009.

By order dated February 4, 2002, the Supreme Court, Queens County appointed Charles W. Benton, Esq. as the guardian of the property of Joseph Brancato and required the posting of a bond in the sum of $500,000.00. Thereafter, the guardian posted a bond in the sum of $500,000.00, with Fidelity as the surety on such bond (Bond No. CFB 8629-782). By order dated [*2]July 22, 2004, the Supreme Court, Queens County ordered that the guardian file a reduced bond in the amount of $207,000.00 and such guardian bond was issued by Fidelity on February 9, 2005.[FN1]

By order dated November 22, 2006, the Supreme Court, Queens County granted the guardian's application to resign and directed him to file a motion to settle his final accounting. After reviewing the guardian's final accounting, the Supreme Court, Queens County signed a judgment dated February 28, 2011 and entered March 1, 2011, which surcharged the guardian in the sum of $664,388.00, plus interest. The judgment has not been paid, despite demand therefor. The guardian has filed a notice to appeal the judgment, however, that appeal has not been perfected, nor has a stay of enforcement of the judgment been obtained.

The petitioner now seeks leave to commence a proceeding in this court against Fidelity pursuant to SCPA 809 (1) (a), which provides, in relevant part, that an action or proceeding on a fiduciary's bond may be brought by leave of court by a person having a judgment against the fiduciary which remains unsatisfied after the expiration of 10 days from date of entry. Since the petitioner, as executor of the estate of Joseph Brancato, has a judgment against the former guardian of the property of Joseph Brancato which remains unsatisfied more than 10 days after entry of such judgment, the petitioner clearly has the right to commence a proceeding pursuant to SCPA 809 (1) (a).

In opposition to the petitioner's motion for leave to commence such a proceeding, Fidelity argues that commencement of such a proceeding would be premature until such time as appellate review of the judgment is completed. However, this argument is unavailing as the language of SCPA 809 (1) (a) specifically provides that such a proceeding may be commenced 10 days after entry of the judgment against the fiduciary; it makes no provision for the completion of any appeal process. In the absence of a stay of judgment pending appeal (CPLR 5519), the judgment against the guardian is fully enforceable.

Fidelity further opposes the petitioner's motion arguing that even if leave to commence a proceeding on the bond were to be granted, Supreme Court, Queens County would be the appropriate venue for such a proceeding. However, Fidelity fails to cite any statutory or caselaw authority in support of such argument. Since a proceeding on the fiduciary bond clearly relates to a claim by this estate which is within the jurisdiction of this court, such a proceeding would be appropriately venued in this court (SCPA 201).

Accordingly, the motion is granted and the petitioner is granted leave to commence a proceeding against Fidelity as surety on the bond issued to Charles W. Benton, Esq., former guardian of the property of the decedent Joseph Brancato.

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

Dated: March 7, 2012 [*3]

EDWARD W. McCARTY III

Judge of the

Surrogate's Court Footnotes

Footnote 1: The guardian bond issued by Fidelity on February 9, 2005 in the amount of $207,000.00 was numbered Bond No. CFB 8629-782, the same bond number as the $500,000.00 bond which had been previously issued by Fidelity.