Matter of Wiese

[*1] Matter of Wiese 2013 NY Slip Op 50893(U) Decided on June 4, 2013 Sur Ct, Nassau County McCarty, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2013
Sur Ct, Nassau County

In the Matter of the Account of Proceedings of Jeffrey E. DeLuca, as Administrator of the Estate of Dec. No. 28765 Doris Wiese, Deceased.



357623/A



Richard Kerins, Esq. (for public administrator)

Mahon Mahon Kerins & O'Brien

254 Nassau Blvd.

Garden City So., NY 11530

Our mailing address is 262 Old Country Rd., Mineola, NY 11501

Edward W. McCarty, J.

Before the court is a petition filed by the Public Administrator, as administrator of the estate of Doris Wiese, seeking an order releasing and discharging the surety of the fiduciary's bond, Liberty Mutual Insurance Company.

BACKGROUND

Dorothy Wiese died on August 8, 2009. Letters issued to the Public Administrator on September 22, 2009. According to petitioner, the sole asset in decedent's estate was her interest in real property located in Floral Park. The Public Administrator obtained a bond in the amount of $429,000.00.

Counsel for the Public Administrator now advises the court that the outstanding mortgage on the property far exceeded its value and that the Public Administrator executed a deed to a third party. The present petition seeks an order releasing and discharging the Public Administrator and its surety from any and all claims, demands, actions and liabilities on account of the proceedings, acts or omissions of the Public Administrator as administrator of the decedent's estate.

In support of the petition, the Public Administrator filed an "Affidavit of Accounting", reflecting an abbreviated Schedule A, which shows that the only asset was real property valued at $235,000.00. Mortgage arrears on the property exceeded $300,000.00. In connection with the petition, an accounting citation was submitted, issued and served upon the surety.

ANALYSIS

Typically, a surety may be released when a fiduciary settles his or her account, which may be accomplished by filing a formal judicial account, by obtaining receipts and releases for an informal account, or by obtaining a decree from the court on receipts and releases (see Turano [*2]and Radigan, New York Estate Administration § 6.02 [a] [2013 ed]). A judicial account has not been filed with petitioner's request that the court issue an order releasing and discharging the Public Administrator and his surety, nor is there any indication that decedent's distributees or creditors were given notice that the Public Administrator is seeking this relief.

It is well established that an account may be directed on the court's own motion (SCPA 2205; Stortecky v Mazzone, 85 NY2d 518 [1995]). An administrator is entrusted by the court with assets belonging to other people; accordingly, the administrator's accountability is crucial (See Matter of Iannone, 104 Misc 2d 5 [Sur Ct, Monroe County 1980]). Once an account is filed, it is then the responsibility of the fiduciary to obtain jurisdiction over all of the parties interested in the estate.

The court finds that the "Affidavit of Account" is inadequate to discharge the administrator and his surety and directs the Public Administrator to file a judicial account with proper notice to all interested parties.[FN1] The petition to be filed with the account should include the present request for relief. In a separate proceeding, the Public Administrator may choose to apply for a reduction in the amount of the bond pending the settlement of his account.

This is the decision and order of the court.

Dated: June 4, 2013

EDWARD W. McCARTYJudge of the

Surrogate's Court Footnotes

Footnote 1:The court acknowledges that it may be a "zero" account.