Matter of Kennedy

Matter of Kennedy 2014 NY Slip Op 08259 Decided on November 25, 2014 Appellate Division, First Department 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 Official Reports.

Decided on November 25, 2014
Friedman, J.P., Renwick, Moskowitz, Richter, Manzanet-Daniels, JJ.
13618 32A/10

[*1]of Jean Kennedy, etc, Deceased.

Ann Lorenzetti, Petitioner-Appellant,

v

Shelly Sherry, Respondent-Respondent.

Scalise & Hamilton, LLP, Scarsdale (Catherine A. Sheridan of counsel), for appellant.

Appeal from order, Surrogate's Court, New York County (Nora Anderson, S.), entered on or about June 12, 2013, which dismissed the petition to compel an accounting by respondent executor, unanimously dismissed, without costs, as moot.

Shortly after this appeal was perfected, the executor elected to petition the Surrogate's Court to obtain a formal judicial settlement of the estate and trust account under SCPA 2208.

Were we to consider the merits, we would find that the Surrogate properly extended sua sponte the executor's time to answer the petition (see generally Shure v Village of Westhampton Beach, 121 AD2d 887 [1st Dept 1986]). The elderly executor was hospitalized and subsequently underwent rehabilitation for a broken hip and elbow in or about the time the answer was due. Further, during the relevant time period, the parties attempted to resolve their disputes during court conferences with an intent to avoid additional legal expense for the estate and trust. To the extent law office failure accounted for the delay in serving an answer, that is an additional basis for finding the executor's excuse reasonable (see Shure, 121 AD2d at 888; Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]).

We would find further that the Surrogate properly determined at the time that it was in the best interests of the estate and trust to deny the petition to compel an accounting (see generally Matter of Taber, 96 AD2d 890 [2d Dept 1983]). Petitioner argued only generally that the as yet unsubstantiated administration expenses appeared high and potentially threatened her interest in [*2]the estate and trust, and she failed to show that she was precluded from obtaining the executor's administrative records. Moreover, there is evidence to support a finding that petitioner has no interest in the estate and trust.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 25, 2014

CLERK