Matter of Lydia Wagner v Walter Drobenko

Matter of Sobol 2005 NY Slip Op 00316 [14 AD3d 426] January 20, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 16, 2005

In the Matter of the Estate of Bruce Sobol, Deceased. Lydia Wagner, Respondent; Walter Drobenko et al., Appellants. Kevin H. Cohen, Nonparty Respondent.

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Order, Surrogate's Court, New York County (Eve Preminger, S.), entered on or about November 13, 2003, which appointed a receiver to manage decedent's business, Madison Avenue Caviarteria, Inc., pending a final determination of whether the preliminary letters testamentary issued to Walter Drobenko should be revoked, and authorized the receiver to collect a $500,000 life insurance payment on behalf of the business, unanimously affirmed, with costs.

Contrary to appellants' assertion, the Surrogate did not effectively revoke the preliminary letters testamentary that had been issued. Appellant Drobenko was permitted to continue to serve as preliminary executor of decedent's will; the temporary receiver displaced appellants only with respect to the operation of decedent's business and the collection of life insurance proceeds on the business's behalf. In any event, it does not appear that the Surrogate exercised her discretion unsoundly in appointing the temporary receiver (see 64 B Venture v American Realty Co., 194 AD2d 504 [1993]). There is no dispute that the viability of the business was at risk and Drobenko, by his own admission, found the day-to-day management of the business onerously time-consuming. In addition, it appears that Drobenko was a creditor of the decedent's estate, and that circumstance along with evidence showing that he was disposed to put the decedent's business into bankruptcy and had failed to answer inquiries of parties interested in investing in the business, raised the inference of a conflict of interest on his part sufficient to place the business at risk. The need for a temporary receiver to avert the danger of irreparable loss and [*2]damage to the estate's property was adequately made out (see Dolgoff v Projectavision, Inc., 235 AD2d 311, 312 [1997]).

We have considered appellants' remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Williams, Gonzalez, Sweeny and Catterson, JJ.