Matter of Roberts
Annotate this CaseDecided on November 16, 2010
Sur Ct, Bronx County
Estate of Ruby Roberts, Deceased.
2010-455A
Joel Levy, Esq. for Robert Kidd and Janice Deary, cross petitioners.
Reddy, Levy & Ziffer, P.C., (Jay H. Ziffer, Esq., of counsel) for Bonnie Gould, Public Administrator, Bronx County
Lee L. Holzman, J.
In this contested administration proceeding in which the Public Administrator petitions and an alleged niece and nephew cross-petition for letters of administration, the cross petitioners move, pursuant to CPLR 3212, for summary judgment dismissing the Public Administrator's petition and objections to their cross petition. The Public Administrator opposes the motion.
The decedent died intestate on November 1, 2008 at the age of 89. The cross petition alleges that her distributees are seven nieces and nephews. Prior to her death, a Mental Hygiene Law article 81 guardian was appointed as guardian of the decedent's person and property. On March 8, 2010, the Public Administrator petitioned for letters of administration and a turnover of the decedent's funds by the former article 81 guardian, citing that guardian and seven alleged nieces and nephews. On April 8, 2010, the movants cross-petitioned for letters of administration, annexing the waivers and consents of the five other alleged nieces and nephews. In response to the cross petition, the Public Administrator filed and served an answer interposing seven affirmative defenses and objections which, in essence, assert that the movants: failed to establish they are distributees with priority to serve as fiduciaries pursuant to SCPA 1001; failed to establish that the decedent was not survived by anyone more closely related than the alleged nieces and nephews; and, demonstrated a want of understanding under SCPA 707, due to their delay in cross-petitioning for letters of administration.
The movants now seek summary judgment contending that they have priority over the Public Administrator and they agree not to seek commissions. In support, they annex an affidavit of kinship by a friend of the decedent for 50 years who also knew many of the decedent's family members, as well as census records, death certificates, obituaries, funeral mass cards, and affidavits of kinship by two of the consenting alleged nieces. Collectively, the evidence in support of the motion reveals, inter alia, that: (1) the decedent was predeceased by her husband and had one child who predeceased her without issue; (2) although a 1930 census record indicates that the decedent was one of five children, she was one of seven children; (3) the [*2]decedent was predeceased by her parents and all six of her siblings, four of whom predeceased her without issue; (4) the decedent's brother George Williams had five children, one of whom predeceased the decedent and the remaining four of whom survive, including one of the cross petitioners; and, (5) the decedent's sister Carrie Williams Kidd had four children, one of whom predeceased the decedent and the remaining three of whom survive, including the other cross petitioner.
The Public Administrator opposes the motion asserting, inter alia, that: (1) there is insufficient independent proof that the decedent's predeceased son died without issue, and the proof rests largely on affidavits of heirship by interested parties; (2) the movants failed to annex birth certificates for all children born to the decedent's parents, many of whom would be under the age of 100 on the date of the decedent's death; and, (3) the funeral mass card for the predeceased daughter of George Williams refers to her aunt and uncle Rosa and Alonzo Williams, but there is no indication as to how the decedent is related to Alonzo, who might have priority over the movants. As a result, the Public Administrator contends that her petition should be granted or the court should grant her letters of temporary administration, without prejudice to the rights of the movants to establish their status as distributees.
Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). 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 (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).
The Surrogate's Court "must" grant letters of administration pursuant to the order of priority set forth in SCPA 1001 (see Matter of Pfeferblum, NYLJ, Mar. 24, 2010, at 34, col 3; Matter of Williams, 24 Misc 3d 1241 [A], 2009 NY Slip Op 51840 [U] [2009]; Matter of McDowell, NYLJ, Feb. 21, 2006, at 35, col 4). Here, there is ample proof, in the form of documents as well as affidavits, including one by a disinterested party, establishing that the decedent was predeceased by her husband, as well as by her only son who died without issue, and was also predeceased by her parents. That evidence creates statutory priority, over the Public Administrator (see SCPA 1001 [8] [a]), in her surviving nieces and nephews (see SCPA 1001 [1]), the movants and the other five nieces and nephews who consent to the cross petition, even if the decedent had additional siblings or nieces or nephews who survived the decedent but whose names or whereabouts are unknown (see SCPA 1003 [4]). Moreover, while the funeral mass card for the predeceased daughter of George Williams refers to an aunt and uncle Rosa and Alonzo Williams, the documents and affidavits, including that of the non-interested party, are consistent in demonstrating that all of the decedent's six siblings predeceased her, and the movants counter that those persons were related through marriage to the predeceased daughter of [*3]George Williams. In sum, the Public Administrator failed to submit any evidence establishing that the movants are disqualified under SCPA 707 from serving as fiduciaries of the estate.
Accordingly, as the movants demonstrated their entitlement to summary judgment, the petition and objections of the Public Administrator are dismissed, the cross petition is granted, and letters of administration shall issue to the movants, subject to their posting a bond in the penal sum of $420,000. Although it appears that the cross petitioners expeditiously proceeded to seek letters of administration upon learning of the decedent's death at or about the time that they were served with process in the Public Administrator's proceeding, it is clear that the Public Administrator did not file a petition for letters of administration until more than one year after the decedent's death, and that this proceeding, in which jurisdiction was obtained over all necessary parties, facilitated the administration of the estate. Consequently, the dismissal of the Public Administrator's petition is without prejudice to her right to reimbursement from estate assets both for disbursements and reasonable legal fees for services performed in connection with commencing the administration proceeding and obtaining jurisdiction over all necessary parties.
Settle decree.
SURROGATE
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