Matter of Faragiano

[*1] Matter of Faragiano 2014 NY Slip Op 24326 Decided on October 29, 2014 Sur Ct, Erie County Howe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 29, 2014
Sur Ct, Erie County

In the Matter of the Estate of Providence H. Faragiano, Deceased,



2012-4495/B



LAW OFFICE OF RALPH C. LORIGO

Attorneys for the Administrator Frances Slatter

Jon Minear, Esq., of Counsel

BAKSHI & LETA

Attorneys for the Respondents

Sunil Bakshi, Esq., of Counsel
Barbara Howe, J.

Decedent died at age 89 on October 2, 2012. Her husband had predeceased her in August, 2008, and she was survived by four children: Frances, Joseph, Mary and Rosalie.

Although decedent had executed a Will on May 14, 1996, only a conformed copy has ever been filed with this Court. An affidavit from the attorney-draftsperson and witness to that Will attests that, following its execution, the original Will was given to decedent who then took it with her.

When a previously executed Will cannot be found after death, there is a presumption that it was destroyed by the testator if it was in her possession (see Matter of DiSiena, 103 AD3d 1077 [2013], Matter of Demetriou, 48 AD3d 463, 464 [2007] and Matter of Evans, 264 AD2d 482 [1999]). If the presumption applies, the proponent will then be required to establish that the testator did not revoke it during her lifetime (Matter of Fox, 9 NY2d 400, 407 [1961]). And, while the presumption is rebuttable, it may only be overcome "by clear and convincing evidence (Matter of Millen's Will, 30 NYS2d 274, affd 264 App Div 936 [1942], affd 291 NY 613 [1943])" (Matter of Eisenstadt, NYLJ, Jan. 18, 2011, at 20, col 4).

Thus, at least at this juncture, there is no valid Will before the Court. If that circumstance continues, but without prejudging the matter, the estate apparently will pass by intestacy. See generally, Matter of Link, 146 Misc 2d 319 [1990] and Matter of Tutein, 2008 NY Misc LEXIS 6612, 240 NYLJ 76 [2008]; see also, Turano and Radigan, New York Estate Administration, §8.04, [*2]at 318 [2014 ed].

Frances filed an application to become voluntary administrator of this estate on November 5, 2012, listing assets in a bank account of $20,149.88. Certificates were issued to Frances that same day to deal with the account.

On January 14, 2014, Mary and Joseph filed a petition seeking a compulsory accounting from Frances not only as to estate assets but also to actions taken by Frances as decedent's article 81 guardian. Frances has never formally answered this petition, but, on May 14, 2014, she filed a petition for judicial settlement of her accounts as fiduciary of the estate.

On June 10, 2014, a citation was issued by this Court, returnable August 6, 2014, in the judicial settlement proceeding. Mary and Joseph filed objections on June 17, 2014. On the citation return date, the parties appeared before the undersigned and agreed on the record to do document discovery.[FN1]

However, following her court appearance on August 6, 2014, Frances filed a motion for summary judgment, seeking dismissal of the objections and approval of her accounting. The motion was returnable September 3, 2014. Opposing papers were filed on Mary and Joseph's behalf on August 27, 2014.

Frances argues that the objections were interposed incorrectly according to the rules of court. Specifically, she relies on Uniform Rules for Surrogate's Court (22 NYCRR) §207.41 which provides, insofar as relevant here:

"On any accounting by an executor, administrator, temporary administrator, guardian or trustee, any creditor or any other party interested may file objections thereto in writing within such time as shall be allowed by the Surrogate. Such objections must be served upon the accounting party or the accounting party's attorney before the filing thereof in the court" (emphasis added). Frances also relies on Matter of DeSantis, 266 AD2d 391 [1999], in which the Appellate Division, Second Department, summarily held, citing §207.41 of the Rules, that the Orange County Surrogate Judge had acted properly by not considering objections to an accounting where the objections had been filed with the court prior to being served on the fiduciary.[FN2]

For the reasons which briefly follow, I decline to follow DeSantis, and I also conclude that there is no merit to Frances' motion for accelerated judgment.

I observe first that this estate is an e-filed matter, and that Frances is a consenting e-filing party. The objections were paper filed by Mary and Joseph on June 17, 2014, and uploaded into the e-filing system on June 20, 2014.

Under §207.4-a(c)(1) of the Rules (22 NYCRR), a "party who chooses to participate as an e-filer must thereafter file, serve, and accept service of all documents electronically" (emphasis added). §207.4-a(g)(2) of the Rules (22 NYCRR) further provides that, except with respect to [*3]obtaining jurisdiction over a party to a proceeding:

"where service of documents is required, e-service may be made upon any party who is an e-filer in the proceeding."

Thus, because Frances is an e-filing party in this matter, she consented as a matter of law to accept service of all papers except process used to obtain jurisdiction over her in a proceeding by "e-service". Here, Frances was duly served on June 20, 2014 when this court uploaded the objections into the e-filing system.

Moreover, as with consenting e-filing parties generally, any conflict between §207.4-a(c)(1) or (g)(2) would seem necessarily to be resolved against a strict application of the §207.41 requirements.

Second, in Matter of Rad, 2008 NY Misc LEXIS 10876, aff'd 38 AD3d 388 [2007], Surrogate Judge Roth of the New York County Surrogate's Court, declined to adhere to a strict application of §207.41 of the Rules, or to follow DeSantis, and held that, "in the absence of a persuasive showing of prejudice to the fiduciary, the objections will be considered on the merits." Judge Roth's decision was affirmed by the Appellate Division, First Department, although the issue relating to §207.41 of the Rules was not specifically addressed.

Because the Appellate Divisions of the First and Second Departments have taken differing views of when, if and how to apply §207.41 of the Rules, and where neither our Appellate Division, Fourth Department, nor the Court of Appeals, has addressed the issue, I am not required to follow one view as opposed to another (see, Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 [1984] and D'Alessandro v. Carro, ____ AD3d ____, 992 NYS2d 520 [dec. Sept. 18, 2014]; and see People v. Turner, 5 NY3d 476, 482 [2005]) that is, I am not required to follow either DeSantis or Rad, or I may determine which I believe is the better approach as between the two. Here, I find that, under the circumstances of this case, where Frances was served with the objections no more than three days after they were filed, no claim of prejudice could conceivably arise, and they should be considered on the merits.

This decision shall constitute the Order of this Court and no other or further order shall be required.

DATED:BUFFALO, NEW YORK

October 29, 2014 __________________________________

HON. BARBARA HOWE

Surrogate Judge

Footnotes

Footnote 1:Rosalie has not appeared in this proceeding or filed objections. Frances has failed to file an SCPA 1411 citation, and none has ever been served on Rosalie.

Footnote 2:There is nothing in the DeSantis decision to indicate when service of the objections occurred relative to when they had previously been filed.