Matter of Rizaj
Annotate this CaseDecided on June 20, 2007
Surrogate's Court, Bronx County
In the Matter of Estate of Ali Rizaj, Deceased.
505-A/06
Lee L. Holzman, J.
In this contested administration proceeding, the petitioner, one of the decedent's daughters, moves for summary judgment awarding her letters of administration and dismissing the objections filed by one of the decedent's sons. The pro se objectant, one of the decedent's sons, opposes the motion, alleging that the petitioner is unfit to serve as fiduciary, and requests that letters of administration issue to the Public Administrator.
The decedent died intestate on March 14, 2003. His distributees are a spouse who post-deceased, six children, and a grandson, who is the child of a predeceased son. The primary asset in this estate is a 50% interest in real property located in the Bronx, where the objectant resides. The other 50% interest is owned by the estate of the decedent's predeceased son. A proceeding for the appointment of a fiduciary in the decedent's estate was not commenced until August 9, 2006. The amended petition and affidavits of service filed by the petitioner rendered academic the jurisdictional objections previously raised with respect to a son who resides in Albania and the grandson. The remaining objections were amplified in the objectant's unsigned opposition to the motion for summary judgment, which alleges that: 1) the petitioner deliberately undervalued the decedent's 50% interest in the realty; 2) the petitioner harassed and threatened the objectant and his family, requiring him to secure a temporary order of protection against her from the Bronx Family Court; 3) the petitioner converted the proceeds of an insurance payment issued after a fire at the realty and he received no reimbursement for his loss of personal property in the fire; 4) the petitioner converted a jewelry box and its contents worth approximately $10,000, which the objectant gave to his mother for safekeeping after the fire; 5) the petitioner changed the locks on the residence after the fire and failed to give the objectant a key; and 6) the notarized signature on the waiver and consent of his deceased mother, dated June 2, 2006, was either forged by the petitioner or procured at a time when his mother was incompetent.
Notwithstanding that the pro se objectant's opposition to the instant motion is neither signed nor notarized, for purposes of the instant motion, the court will deem these [*2]omissions to be a curable oversight and will consider the allegations to ascertain whether they provide any basis for defeating the motion.
A summary judgment motion cannot be granted unless it clearly appears that no material issues of fact exist (Phillips v Joseph Kantor & Co., 31 NY2d 207 [1972]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Glick & Dolleck, Inc. v Tri-Pac Export Corp, 22 NY2d 439 [1968]). The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1983]).
The objectant's submissions of tape recordings, the authenticity of which have not been established, may not be considered by the court. Moreover, neither the temporary order of protection issued by the Bronx Family Court, which expired in November, 2002, nor the allegation that the locks for the residence where the objectant resides were changed after the decedent's death is sufficient to support a finding that a person entitled to priority under SCPA 1001 should be denied letters because hostility will interfere with the proper administration of the decedent's estate (Matter of Venezia, 25 AD3d 717 [2006]). The apparent primary source of the friction, i.e., the alleged misapplication of the insurance proceeds, is being litigated in another forum. Where the concerns of the objectant may be addressed by the posting of a bond or placing restrictions upon the letters, the administration of the estate should not be delayed by the objectant raising issues about the "honesty" of the petitioner where the issues raised are presently being adjudicated before another court or could be raised in that action.
The petitioner filed waivers and consents from the decedent's spouse, whose estate has an interest in this estate of $50,000 plus one-half of the balance, and from her three sisters, each of whom has a one-fourteenth interest, as does the petitioner. The objectant's interest in the estate is likewise a one-fourteenth interest. As the petitioner's application is supported by the post-deceased spouse and the decedent's four daughters, she represents the people holding the majority interest in the estate and, therefore, it is presumed that her appointment as fiduciary is in the best interests of the estate (see SCPA 1001[1][f]; Matter of Doyle, NYLJ, Jul. 13, 2005, at 26, col 1; Matter of Pearsall, 191 Misc 2d 66 [2002]; Matter of Nocera, 10 Misc 2d 495 [1958]; Matter of Samuels, 204 Misc 842 [1953]. To decide otherwise would only unduly prolong the length of time in administering this estate and add unnecessary expenses (see Matter of Nocera, supra). The court also notes that although the spouse post-deceased and the objectant questions the validity of her waiver and consent, it appears that the distributees who would receive four-sevenths of her estate also support the petitioner's application regardless of whether the objectant could prove his allegation that the waiver and consent executed by the spouse on June 2, 2006 is not valid. Moreover, the objectant has not offered independent proof to support his claims concerning the spouse's physical condition or the genuineness of her signature on the notarized waiver and consent.
Accordingly, summary judgment is granted in favor of the petitioner and letters of administration shall issue to her. The letters of administration shall be subject to SCPA 805 (3) with respect to the disposition of the decedent's interest in real property. Any application concerning the disposition of the realty shall be made on notice to the objectant [*3]so that he will have the opportunity to protect his interest in the estate. Furthermore, should the objectant be of the opinion that the petitioner claims ownership to any property that is an estate asset, the granting of this application is without prejudice to his right to seek limited letters of administration to recover such property on behalf of the estate (SCPA 702 [9]) or to raise the issue in an accounting proceeding.
Settle decree.
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SURROGATE
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