Matter of Mullen

[*1] Matter of Mullen 2012 NY Slip Op 52241(U) Decided on December 11, 2012 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2012
Sur Ct, Bronx County

Estate of Frances Mullen, Deceased



2010-2983/A



Stephen B. Kaufman, Esq., for Patrick Mullen, petitioner

Sandra M. Prowley & Associates, LLC (Sandra M. Prowley, Esq., of counsel) for William Mullen, cross-petitioner

Howard R. Vargas, Esq., for Michael Mullen, son

Lee L. Holzman, J.

In this probate proceeding, the decedent's son Patrick petitions for his appointment as the sole preliminary executor. The decedent's son William opposes that application and cross-petitions for his appointment as the sole preliminary executor. The decedent's only other distributee, her son Michael, who is disinherited under the propounded instrument, supports Patrick's application.

It appears from papers filed in this proceeding that the battle between the decedent's sons commenced prior to her death. In a petition verified in March of 2010, Patrick and Michael sought to be appointed as the guardians of the decedent's person and property pursuant to article 81 of the Mental Hygiene Law. At that time, the decedent was living in her Bronx home with William who was handling her affairs pursuant to a power of attorney. Due to the decedent's death on October 26, 2010, the guardianship proceeding was terminated without the appointment of a guardian.

After the decedent's death, the will was not produced until Patrick commenced a proceeding against William to produce the will and the court entered an order on December 29, 2010 directing its production. Thereafter Patrick and William filed separate probate petitions, each of them seeking the issuance of letters testamentary solely to himself. In a brief period of harmony, Patrick and William stipulated that preliminary letters testamentary would issue jointly to them for a period of 90 days (see Matter of Mullen, NYLJ, Apr. 27, 2011, at 27, col 5). During that 90-day period, it appears that the two brothers failed to do anything with regard to either the probate proceeding or administering the five parcels of realty owned by the decedent which appear to be the primary assets of her estate. After the preliminary letters expired, the instant applications were presented to the court and the brothers continued trading accusations.

The propounded instrument provides in pertinent part that the residuary estate is divided equally between William and Patrick, William is to be the executor, and Patrick the successor [*2]executor. In support of his application to be appointed as the sole preliminary executor, notwithstanding that he is nominated only as the successor executor, Patrick contends that William is ineligible to be appointed as a fiduciary because William was convicted of felonies in Florida in 1984 (see SCPA 707 [1] [d]) and because William is dishonest as demonstrated by his misuse of the power of attorney that he obtained from the decedent (see SCPA 707 [1] [e]). Specifically, Patrick asserts that: (1) William used the power of attorney to purchase a boat for his son; (2) otherwise, William improperly used the decedent's funds; and, (3) William will neither cooperate in the sale of the decedent's home in the Bronx where William is residing rent free, nor in the sale of a parcel of realty in Florida where William's son resides.

William counters that he is in favor of selling all of the parcels of realty and alleges that Patrick previously abused drugs and alcohol and presently attends meetings for these problems. William also asserts that Patrick went through a bankruptcy proceeding. William notes that although the decedent was competent when she appointed him as her attorney-in-fact, he needed the power to prevent Michael from continuing to steal money from the decedent. In support of his cross petition to be appointed as the sole preliminary executor, William notes that the will nominates him as the sole executor, and as he entered a plea of nolo contendre to the Florida charges, he was never convicted of a felony which would render him ineligible to serve as a fiduciary.

In his effort to disqualify William, Patrick submits a certified copy of William's Florida arrest record from the Florida Department of Law Enforcement indicating William was arrested on August 11, 1984 and charged with three felony level offenses: carrying concealed weapons (firearm); carrying concealed weapons (knife); and possession of marijuana. Although the arrest record indicates "DISP - CONVICTED," presumably establishing a felony conviction, this official record also bears the following notation:

Charges and dispositions as coded herein reflect standardized uniform offense and disposition classifications for computerized criminal history records. More detailed and specific information may be available from contributors. The department does not warrant that these records are comprehensive or accurate, only that this record contains all information on the subject that the department has received and is presently authorized by law to disseminate.

Patrick also submits a certified copy of the handwritten clerk entry of the Broward County Circuit/County Court dated November 26, 1984 pertaining to William's arrest and conviction. Under the area captioned "Charge" is the following handwritten notation: " CCF II CCW and III Possession of Canabis (M)." As for adjudication, the record indicates: "Withheld I and III guilty (M)." Further under the section marked "OTHER", is the notation "II Nollo Prosequi." As to charges I and III the plea was "nolo." The sentence for Charge I was two years probation, a psychological examination and a $250 donation to a charity. The sentence for Charge III was a $150 fine plus 5% surcharge. The parties dispute the meaning and interpretation of the two records. With respect to the alternative basis to disqualify William on the ground of dishonesty, Patrick submits the decedent's Chase checking account monthly statements and canceled checks covering the period July, 2008 through June, 2009, evidencing numerous automatic teller machine cash withdrawals and checks payable to William and William's son in Florida for personal items.

William opposes Patrick's application arguing that his nolo contendre plea does not [*3]constitute a conviction as the plea results in adjudication being withheld, and therefore, he cannot be deemed a "convicted felon." In response to the alternative ground for disqualification, William does not dispute that he made the withdrawals with the power of attorney; rather, he proffers as justification that he "saved his mother from financial ruin by Michael," as Michael allegedly defrauded the decedent by forging checks and incurred substantial debts by utilizing credit cards issued to her. He also asserts that he purchased the boat at the decedent's behest because she was planning to move to Florida and she viewed the boat as a vehicle to escape the heat. In support of his cross petition for preliminary letters, William notes that he is the sole executor under the propounded instrument and he states that he is in favor of selling all of the decedent's realty at the right price, including the parcel in the Bronx where he resides and the parcel in Florida where his son resides.

Generally, testators' solemn selections as to who should be trusted with administering their estates should be nullified only when statutory grounds for disqualification are clearly established (see Matter of Duke, 87 NY2d 465, 473 [1996]; Matter of Leland, 219 NY 387 [1916]; Matter of Gottlieb, 75 AD3d 99 [2010], lv denied 16 NY3d 706 [2011]; Matter of Foss, 282 App Div 509 [1953]). The sole grounds for disqualifcation are enumerated in SCPA 707 and 711 (see Matter of Palma, 40 AD3d 1157, 1158 [2007], and cases cited therein.) Furthermore, the burden of proof falls upon the party alleging the disqualification (see id; see also Matter of Krom, 86 AD2d 689 [1982], appeal dismissed 56 NY2d 807 [1982]). A determination of ineligibility under SCPA 707 (1) (d) requires that the proposed fiduciary be convicted of a crime that constitutes a felony under New York law, and accordingly, a felony conviction in another jurisdiction may not be the basis for disqualification of a fiduciary in New York if the acts resulting in the conviction are not a felony under New York law (see Matter of Murphy, 136 Misc 2d 618 [1987]; Matter of Caperonis, 95 Misc 2d 690 [1978]; Matter of Cohen, 164 Misc 98 [1938], affd 254 App Div 571 [1938], affd 278 NY 584 [1938]). In New York, a "felony" is defined as "an offense for which a sentence to a term of imprisonment in excess of one year may be imposed" (Penal Law §10.00 [5]).

A "nolo prosequi" or "nolo contendre" plea is a common law plea which has been abolished in New York, but nonetheless, in criminal cases, the plea will be deemed a criminal conviction by New York courts (see People v Daiboch, 265 NY 125 [1934]; Scranton Volunteer Fire Co. v Ball, 37 AD2d 757 [1971], affd 30 NY2d 589 [1972], reh denied 30 NY2d 880 [1972]; Kasckarow v Bd. Of Examiners, 33 Misc 3d 1028 [2011]; see also Matter of Silmon v Travis, 95 NY2d 470 [2000] [holding that "Alford" pleas of guilty without admitting culpability are "from the State's perspective . . . no different than other guilty pleas"]).

Here, Patrick fails to provide the court with the equivalent New York counterparts to the applicable Florida penal law sections when William entered his plea in 1984, to wit: former Fla Statutes Annotated, title 46, §§ 790.1 and 893.13. Nonetheless, it appears that the equivalent penal statutes in New York may be Penal Law sections 265.01 (criminal possession of a weapon in the 4th degree) and 221.05 (unlawful possession of marijuana). In New York, violations of the aforesaid statutes are punishable as a class A misdemeanor and a violation, respectively. Thus, based upon the record before the court, the convictions under the comparable New York statutes do not constitute felonies, and William is not [*4]ineligible to serve as executor (see Matter of Murphy, 136 Misc 2d at 618; Matter of Caperonis, 95 Misc 2d at 690; Matter of Cohen, 164 Misc at 98). In light of this determination, it is not necessary to discuss William's interesting argument that this case is distinguishable from the New York cases discussing the effect of nolo contendre pleas because his probationary period under this Florida plea concluded more than 25 years ago, and under Florida Law upon the conclusion of the probationary period all of his civil rights were restored, including his right to state that he was never convicted of a crime.

In order for Patrick to prevail on his alternative argument of ineligibility based on dishonesty, "[t]he dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor" (Matter of Gottlieb, 75 AD3d at 107, quoting Matter of Latham, 145 App Div 849,854 [1911]; see also Matter of Krom, 86 AD2d at 689). Thus, generally the dishonesty must rise to the level of a pattern of financial wrongdoing that poses a genuine, serious risk to sound management of the estate (see Matter of Flood, 236 NY 408, 411 [1923]; Matter of Mecko, 70 NYS2d 41 [1947]).

Although Patrick submits voluminous bank statements that show William personally or through others withdrew funds from his mother's account which are questionable, utilizing either a power of attorney or ATM withdrawals, William defends his conduct by alleging that Michael was depleting his mother's accounts by forging checks and using her credit cards for his personal expenses. William argues that he needed to control his mother's finances or Michael would have taken everything. He avers that he primarily used the power of attorney to withdraw funds to eliminate the credit card debt and the exorbitant interest rates allegedly incurred by Michael.

Although the present record is insufficient to establish that, absent a hearing, William should be disqualified for dishonesty, the record does clearly reveal the acrimonious and hostile relationship that exists among the decedent's sons. There clearly is no point in holding a hearing on the dishonesty issue if both sons may not serve at this time due to their animosity towards each other. The clear thrust of SCPA 1412 is to honor the testator's wishes with regard to the appointment of a fiduciary for the estate, even on a temporary basis, so as to reduce the possibility of spurious pre-probate contests (see Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA1412, at 427). Although disharmony between a nominated fiduciary and beneficiaries of an estate alone is not a ground for disqualification, a fiduciary may be disqualified on the ground of being otherwise unfit for office (see SCPA 707 [1] [e]) where the disharmony rises to the level that it jeopardizes the interests of the beneficiaries and the proper administration of the estate (see Matter of Thompson, 232 AD2d 219 [1996]; Matter of Jurzykowski, 36 AD2d 488 [1971], affd 30 NY2d 510 [1972]; Matter of Rad, 162 Misc 2d 229 [1994]).

Here, the brothers' conduct demonstrates that the hostility between them prevents them from cooperating in the sale of any of the realty or in moving the probate proceeding to a conclusion. At present, it is Patrick and Michael on one side and William on the other. For a brief period, William and Patrick tried to co-exist as preliminary co-executors; however, nothing was accomplished during that period and they have regressed to hurling the same allegations toward one another that began at the inception of the article 81 guardianship proceeding. Although William professes that he is willing to sell the [*5]respective parcels of realty where he and his son reside, Patrick asserts that this is not so. On the other hand, William clearly would like to see the parcels of realty sold in which he and his son do not reside and Patrick did not assist in ensuring those sales when they served together as preliminary co-executors. In short, until at least some of the parcels of realty are sold and the probate proceeding is concluded, the court finds that all of the decedent's sons are unfit to serve as a fiduciary of the estate due to the hostility between them (see SCPA 707 [1] [e]; Matter of Thompson, 232 AD2d at 219; Matter of Jurzykowski, 36 AD2d at 488; Matter of Rad, 162 Misc 2d at 229).

Accordingly, this decision constitutes the order of the court denying both Patrick's petition and William's cross petition seeking to be appointed as the preliminary executor of the estate, and granting letters of temporary administration to the Public Administrator upon her duly qualifying according to law and settling upon the decedent's sons a decree granting letters of temporary administration to the Public Administrator (see Matter of Rad, 162 Misc 2d at 229; see also SCPA 1418 [2]).

This decision constitutes the order of the court. All of the parties who appeared in the probate proceeding are directed to appear at the 9:30 a.m. calendar of the court on January 16, 2013 for the purpose of setting a disclosure schedule so that the probate proceeding may move forward with reasonable expedition. The Chief Clerk is directed to mail a copy of this decision and order to all counsel and the Public Administrator.

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SURROGATE