Matter of Seeger

[*1] Matter of Seeger 2008 NY Slip Op 51491(U) [20 Misc 3d 1120(A)] Decided on June 23, 2008 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 23, 2008
Sur Ct, Nassau County

In the Matter of the Petition of Charlene Seeger to Compel David Seeger to Account in His Capacity as "De Facto" Guardian Of Harold Seeger, Deceased.



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The appearances of counsel are as follows:

For Respondent, David Seeger

Spizz & Cooper

114 Old Country Road

Suite 644

Mineola, NY 11501

For Respondent, Susan Seeger

Katten Muchin & Rosenman

575 Madison Avenue

New York, NY 10022

Petitioner, Pro Se

Charlene Seeger

15 Piccadilly Road

Great Neck, NY 11023

John B. Riordan, J.

In this proceeding to compel a "de facto guardian" to account, respondent moves for an order dismissing the petition.

Harold Seeger died on March 13, 2005. His will was admitted to probate by a decree of this court dated July 12, 2005 and letters testamentary issued to Susan Seeger. Susan Seeger has filed a petition to judicially settle her accounts.

Petitioner contends that respondent David Seeger as a "de facto guardian" of decedent, diverted assets of the decedent, a charge which respondent denies.

The law recognizes a "de facto guardian" as one who has not received letters of guardianship but has assumed the responsibilities of a guardian (see Matter of Keele, 305 AD2d 145 [1st Dept 2003]).

It is the fiduciary of the estate who has standing to recover assets of the estate by commencing a proceeding under SCPA 2103. Where a fiduciary fails or refuses to act, limited letters of administration can issue to a person interested (SCPA 702 subd [9]). As there is a pending accounting proceeding, however, the allegation concerning diversion of assets should be raised as an objection to the accounting.

The motion to dismiss is granted without prejudice to the right to file objections to the accounting proceeding.

This decision constitutes the order of the court and no additional order need be submitted.

Dated: June 23, 2008

JOHN B. RIORDAN

Judge of the

Surrogate's Court