Matter of Dorfsman
Annotate this CaseDecided on December 11, 2013
Sur Ct, Nassau County
In the Matter of the Account of Proceedings of Neil E. Dorfsman and Mitchell K. Dorfman, as Executors of the Estate of LOUIS DORFSMAN, Deceased.
In the Matter of the Petition of Neil E. Dorfsman and Mitchell K. Dorfman, to Compel Elissa Dorfsman, as Co-Executor of the Estate of LOUIS DORFSMAN, To Render and Settle the Accounting in the Estate of Louis Dorfsman.
355703/A
Christopher J. Clarke, Esq. (for respondent)
Moritt Hock & Hamroff, LLP
400 Garden City Plaza, Ste. 202
Garden City, NY 11530
John G. Farinacci, Esq. (for petitioners)
Ruskin Moscou Faltischek, P.C.
1425 RXR Plaza, East Tower, 15th Floor
Uniondale, NY 11556
Edward W. McCarty III, J.
Before the court are an order to show cause and two motions in connection with the estate of Louis Dorfsman.
BACKGROUND[*2]
Louis Dorfsman ("decedent") died a resident of Great Neck, on October 22, 2008, leaving a last will and testament dated September 22, 2004. He was survived by his wife, Ann Hysa Dorfsman, and three children, Neil E. Dorfsman, Mitchell K. Dorfman and Elissa D. Dorfman ("Neil," "Mitchell," and "Elissa"). Decedent's wife survived him but died on September 20, 2010. Her will was probated in Pennsylvania, where she resided at the time of her death. There has been ongoing litigation among the siblings in connection with both estates, with Neil and Mitchell on one side, and Elissa on the other side.
PROCEDURAL BACKGROUND
Letters Testamentary in the estate of Louis Dorfman issued to the decedent's three children, Neil, Mitchell and Elissa on April 28, 2009.
On December 19, 2012, Neil and Mitchell filed their account as co-executors of their father's estate and brought a petition to compel Elissa to file her account. The account was amended on January 9, 2013, and citation issued on both matters, returnable on February 6, 2013. Elissa failed to appear in connection with the account filed by her brothers or file her own account on that date. As a result, this court immediately issued Dec. No. 28518 directing Elissa to file an account and petition for its judicial settlement and to cause citation to issue thereon within 10 days of personal service upon her of a copy of the order.
On April 9, 2013, more than two months after the return dates of the citations, counsel for Elissa filed an authorized notice of appearance on her behalf.
Neil and Mitchell subsequently filed an order to show cause to enforce the order directing Elissa to account and to punish Elissa for contempt by revoking her letters testamentary and removing her from office. The order to show cause was signed on April 15, 2013 and made returnable on May 1, 2013.
On April 16, 2013, Elissa filed the present motion in connection with the account that had been filed by Neil and Mitchell. In her motion, Elissa asks the court to: (1) vacate and set aside its decision dated February 6, 2013; and (2) allow Elissa to (a) file objections to the account filed by Neil and Mitchell; (b) present a defense on the merits to the account filed by Neil and Mitchell, on the ground that to the extent there was a default on her part, it was excusable; and (c) file her own account within 60 days.
In connection with the petition filed by Neil and Mitchell to compel Elissa to account, Elissa filed a second motion on April 16, 2013, asking the court to: (1) vacate and set aside the order to account; and (2) grant Elissa (a) 10 days to file an answer to the petition; or (b) 60 days in which to file her account as co-executor of her father's estate.
On April 25, 2013, this court issued Decision No. 28567, in which the court noted that a notice of appearance had been filed on behalf of Elissa. The matter was set down for a conference on May 7, 2013.
Subsequently, Elissa filed her account as co-executor on June 15, 2013. Citation issued and was returnable on October 16, 2013. Although jurisdiction was incomplete on that date, counsel for Elissa filed an affirmation on November 4, 2013, clarifying and correcting the outstanding jurisdictional defects in connection with Elissa's petition to account.
MOTION TOVACATE DEFAULTS
Counsel for Elissa argues that notwithstanding her failure to appear on the citation return dates for the account filed by Neil and Mitchell and the petition to compel her to account as co-executor, her defaults must be vacated and discovery allowed to proceed. Counsel asserts that Elissa's default was excusable, she has a meritorious defense to the proceeding, and vacating the [*3]defaults will cause no prejudice.
Specifically, counsel points out that Elissa's default was not intentional, willful or dilatory, and it caused no prejudice. He claims that his client was unaware that the matter was on the court's calendar and that her appearance was necessary. He argues that once Elissa was advised by Pennsylvania counsel to obtain New York counsel, she did so, and counsel appeared on her behalf.
As a meritorious defense to the proceeding, Elissa claims that she alone performed all of the duties of a co-executor and that she alone should be paid a commission. Elissa also disputes petitioners' requested reimbursement in the amount of $61,456.15 for administration expenses, and legal fees of $20,879.87 paid by Neil and $26,220.64 paid by Mitchell. Elissa also asks the court to disallow any payment of future legal fees.
Counsel for Elissa maintains that vacatur of the defaults would not be prejudicial because the default lasted for only a short time period which caused no prejudice to Elissa's co-executors.
OPPOSITION TO THE MOTION
Counsel for Neil and Mitchell asserts that Elissa's default and her two motions are merely an additional example of Elissa's tactics intended to harass her brothers and delay the administration of their father's estate. They maintain that Elissa, as a practicing elder law attorney, surely understands the significance of a citation return date, despite her claim that she was unaware that her appearance was necessary.
Counsel argues that Elissa never offered a reasonable explanation for her failure to appear, despite the fact that the citations stated clearly that they were returnable on February 6, 2013. They note that while failure to retain counsel does not excuse a default, Elissa had previously engaged two different law firms. If she could not retain counsel, she could have timely requested additional time to do so.
In connection with Elissa's presentation of a meritorious defense, counsel for Neil and Mitchell dispute Elissa's claim that Neil and Mitchell should not receive commissions because Elissa performed a greater portion of the administrative tasks. Counsel points out that Elissa's arguments concerning commissions are not in accordance with SCPA 2313 or paragraph (J) of Article Ninth of decedent's will. Counsel characterizes Elissa's defense as "blanket denials and unsubstantiated questions concerning unreimbursed expenses."
ANALYSIS
Elissa's filing of her account has rendered moot most of the parties' respective requests for relief, with the exception of Elissa's requests that: (1) she be allowed to present her arguments why, if there was a default on her part, it was excusable; and (2) she be permitted to conduct discovery and file objections to Neil and Mitchell's account, despite her failure to appear on the citation return date.
CPLR 5015 (a) states that a "court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested party with such notice as the court may direct upon the ground of . .. excusable default, if such motion is made within one year . . . ." To succeed under this section, a party must show both a reasonable excuse and a meritorious position in the underlying claim. (Kaplinsky v Mazor, 307 AD2d 916 [2d Dept 2003]; O'Shea v Bittrolff, 302 AD2d 439 [2d Dept 2003]; Westchester Med. Ctr. v ELRAC, Inc., 301 AD2d 518 [2d Dept 2003]; Matter of Stewart, NYLJ, June 23, 2008 at 20, col 1 [Sur Ct, Nassau County]). Thus, the issues to be addressed by this court in connection with the present motions are whether a reasonable excuse has been shown for Elissa's failure to appear on the [*4]citation return date for the account filed by Neil and Mitchell and whether Elissa's objections to the account have merit.
Elissa's attorney claims that the default was not willful because Elissa did not know that a citation required a court appearance to avoid default. The court notes, however, that Elissa is an actively practicing attorney in the field of elder law. Elissa also states that she reached out to her former counsel to represent her, but that, unfortunately, they did not get back to her until February 20, 2013, two weeks after the return date of the citation. At that time, former counsel advised Elissa that they could not represent her in these proceedings. However, the court notes that the initial letter sent by Elissa to her former counsel asking them to represent her in these proceedings (attached to her affidavit as part of Exhibit 6) is dated February 8, 2013, which is two days after the date of Elissa's failure to appear in this court.
Accordingly, the court finds that Elissa has failed to present a reasonable excuse for her failure to appear on the return date of the citation.
Even if Elissa had presented a reasonable excuse, she would still be required to show that her objections have merit. Elissa's objections appear to fall into four categories: (1) her brothers do not deserve to receive statutory commissions, as she served as the primary administrator of their father's estate until their mother's subsequent death; (2) her brothers should not be reimbursed for the administrative expenses shown on Schedule C-1 as they have not submitted documentary evidence in support of these expenses; (3) Schedule C does not include all of the administrative expenses, including the headstone and the cost of archiving decedent's works; and (4) her brothers' attorneys have not yet submitted an affidavit of legal services in support of their fees, and the accounting reflects future fees, which are not permitted. No support is provided for Elissa's "objection" that co-executors who are less active than another co-executor should be barred from receiving commissions which are specifically provided for in decedent's will. The administrative expenses shown on Schedule C-1 for reimbursement are reasonably detailed, and actually include expenses reimbursable to Elissa as well as to Neil and Mitchell, although in a lesser amount. If Elissa believes that Schedule C fails to include two items which constitute administrative expenses, Elissa's account may show these items. All legal fees will be reviewed and fixed by the court.
CONCLUSION
As set forth above, the court does not find Elissa's proffered excuse to be sufficient to support vacatur of her default. The court therefore denies the motion to vacate and set aside its decision dated February 6, 2013, and denies Elissa's request that she be allowed to conduct discovery and file objections to the account filed by Neil and Mitchell.
By letter dated October 17, 2013, counsel for Neil and Mitchell requested an examination pursuant to SCPA 2211, at a date and time mutually convenient for all parties. A conference to address this request and to schedule all other permissible discovery in connection with the account filed by Elissa has been scheduled for December 19, 2013 at 3:45 p.m.
This constitutes the decision and order of the court.
Dated: December 11, 2013
EDWARD W. McCARTY III Judge of the
Surrogate's Court
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