Matter of Barboni

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[*1] Matter of Barboni 2013 NY Slip Op 50734(U) Decided on April 25, 2013 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 13, 2013
Sur Ct, Nassau County

In the Matter of Probate Proceeding, Will of Rudolph M. Barboni a/k/a RUDOLPH BARBONI Deceased.


DeRiggi, DeRiggi & DeRiggi(for Estate)

5788 Merrick Road

Massapequa, NY 11758

Sullivan & Sullivan(for Objectants)

1305 Franklin Avenue

Suite 150

Garden City, NY 11530

Edward W. McCarty, J.

This is an application for preliminary letters testamentary to which objections have been interposed.

The decedent, Rudolph M. Barboni a/k/a Rudolph Barboni, died on December 5, 2012 leaving a will dated September 13, 2012 which has been offered for probate. Decedent is survived by two children, Carol Barboni and Michael Barboni. Petitioner, Ann B. Petersen, described in the will as a friend, is the nominated executor and sole/residuary legatee. Carol is named as successor executor, and both Carol and Michael are named as contingent remaindermen. The primary, if not sole, asset of the estate appears to be real property the deceased owned in East Meadow, New York.

Carol and Michael have appeared by counsel and at their request and pursuant to an order dated February 28, 2013, an SCPA 1404 examination is scheduled for May 1, 2013.

The testator's wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing (Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6 [Sur Ct, Nassau County]; Matter of Schill, NYLJ, Mar. 15, 2000, at 30, col 2 [Sur Ct, Nassau County]; Matter of Fordham, NYLJ, Dec. 16, 1998, at 22, col 6 [Sur Ct, Bronx County]; Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 35 [Sur Ct, Kings County]). Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue (Matter of Bayley, 72 Misc 2d 312 [Sur Ct, Suffolk County 1972], affd 40 AD2d 843 [2d Dept 1972], appeal dismissed, 31 NY2d 1025 [1973]). Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible under SCPA 707 (Matter of Roth, NYLJ, Sept. 16, 1999, at 35, [*2]col 5 [Sur Ct, Kings County]; Matter of Kunicki, NYLJ, Aug. 30, 1999, at 30, col 6 [Sur Ct, Kings County]; Matter of Scamardella, NYLJ, June 3, 1996, at 32, col 4 [Sur Ct, Richmond County]). Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters (Matter of Vermilye, 101 AD2d 865 [2d Dept 1984]; Matter of Piterniak, NYLJ, Sept. 20, 2002, at 23, col 3 [Sur Ct, Suffolk County]; Matter of Rella, NYLJ, Mar. 16, 1999, at 28, col 5 [Sur Ct, Westchester County]).

Not surprisingly, Carol and Michael are not pleased with their father's disposition of his estate. Emphasis is misplaced on the short time frame between the date of the will and the date of death as "rais[ing] a serious question" of petitioner's entitlement to preliminary letters. Ms. Petersen is described in the opposition papers as decedent's friend and caregiver. It appears that she was the caregiver for some extended period of time.

Looking at the death certificate and the petition for probate, the deceased died at Ms. Petersen's home in Wantagh, New York. Reference is made to a 2002 will that left the estate to Carol and Michael. No copy is provided. Michael alleges he cared for his father after the deceased had a stroke in 2001 but almost in the same breath says that he [Michael] is in a bad mental and financial situation and "disabled" and his father took care of him. Both children aver in very broad strokes without any documentation or supporting evidence whatsoever that their father was unduly influenced by petitioner, that he lacked testamentary capacity and that the will was not properly executed. The East Meadow property is Michael's childhood home and he has been living there since 1999. He and his sister voice concerns of him being evicted by the issuance of preliminary letters and having no place to live.

On the basis of the foregoing, Michael and Carol have failed to go beyond conclusory allegations which are clearly insufficient to provide a basis for the denial of preliminary letters testamentary. They have not demonstrated "good cause" or serious wrongdoing which would permit the court to nullify the testator's choice of fiduciary.

Accordingly, Ann B. Petersen's application for preliminary letters testamentary as executor under the will is granted.

The will dispenses with the filing of a bond. Pursuant to SCPA 1412 (5), even if the will dispenses with the filing of a bond, the court may require a bond if "extraordinary circumstances" exist. There are no such extraordinary circumstances here (see Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6 [Sur Ct, Nassau County]).

Preliminary letters testamentary shall issue to Ann B. Petersen upon her duly qualifying under the law to serve without bond.

This constitutes the decision and order of the court.

Dated: April 25 , 2013


Judge of the

Surrogate's Court

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