Matter of Zwosta
Annotate this CaseDecided on August 8, 2013
Sur Ct, Nassau County
In the Matter of the Estate of Mary T. Zwosta, Deceased.
2011-364044/B
The appearances of counsel are as follows:
Peter J. Murphy, Esq. (for respondent)
390 Hillside Ave.
New Hyde Park, NY 11040
Jeffrey M. Rosenblum, Esq. (for petitioner)
98 Cutter Mill Rd., Ste. 384N
Great Neck, NY 11021
Edward W. McCarty III, J.
Before the court is a petition for limited letters of administration filed by Helen M. LoTruglio, a residuary beneficiary under the will of Mary T. Zwosta. Petitioner is a niece of decedent's pre-deceased husband. Petitioner indicates that she intends to commence a discovery proceeding for the misappropriation of decedent's property and funds against the other residuary beneficiaries under the will of Mary T. Zwosta: the executor, Anne Catherine McGowan Buff, and her siblings, Thomas McGowan, Denis J. McGowan, Kathryn McGowan Pearce, Michael P. McGowan, and Sean J. McGowan, all of whom are nieces and nephews of the decedent.
BACKGROUND
Mary T. Zwosta died on December 22, 2010, at the age of 93. She was a widow who did not have children. On February 17, 2011, Anne Catherine McGowan Buff filed a petition for probate and letters testamentary in connection with a will executed on August 10, 2010, under which she is the nominated executor. The will was admitted to probate and letters issued to Ms. Buff on March 7, 2011. The will provides a specific bequest of the contents of decedent's china closet to Ms. Buff, two $75,000 cash bequests, one to Thomas McGowan and the other to Kathryn McGowan Pearce, and a residuary bequest in equal shares to all seven above-mentioned beneficiaries.
The present petition for limited letters of administration was filed by Ms. LoTruglio on November 9, 2012. Ms. LoTruglio claims that she was never contacted by Ms. Buff about the distribution of decedent's estate, that the signature on checks of decedent made 18 months prior to her death are substantially different from her signature a year or two prior, and that lifetime distributions purportedly made by decedent through such checks are suspicious. Specifically, counsel for Ms. LoTruglio notes that in the 18 months prior to the decedent's death, checks were issued from decedent's account to (1) Ms. Buff totaling approximately $18,000.00; (2) Thomas McGowan totaling approximately $5,000.00; and (3) Kathryn McGowan Pearce, in the approximate amount of $21,000.00. Petitioner's counsel advises the court that he requested from the executor copies of decedent's Internal Revenue Service Forms 1099 for the years 2008, 2009, [*2]and 2010, copies of bank documents and checks, and a list of decedent's tangible property, but these documents have not yet been provided. Petitioner asks the court to issue limited letters so that she may commence a discovery proceeding.
In Ms. Buff's affidavit in opposition to the issuance of limited letters to Ms. LoTruglio, she states that upon decedent's death she contacted Peter J. Murphy, who was the decedent's accountant and attorney. Mr. Murphy had drafted the will offered for probate and he informed Ms. Buff that after necessary filings with the court, he had "given proper notice of the will proceeding to all necessary parties, including Helen LoTruglio, and that no one had filed any objections." Ms. Buff claims she was ready to distribute the estate assets to the beneficiaries in October 2011, following some delay due to her mother's passing. By the end of October, Ms. Buff had distributed all the estate assets to the beneficiaries and obtained signed releases, with the exception of Helen LoTruglio. Respondent claims in her affidavit that she attempted to contact Ms. LoTruglio several times on her home and business telephone numbers and visited her residence. Subsequent to these purported unsuccessful attempts of communication, Ms. Buff says she received a Christmas card from Ms. LoTruglio stating she would be in Florida for the holidays. Ms. Buff claims she heard nothing more from or about petitioner until Mr. Murphy called Ms. Buff in January 2012 to inform her that Ms. LoTruglio had called him to inquire as to why she had not received her bequest. Ms. Buff says she called petitioner to inform her that the bequest was in the bank and she could receive it when she signed the waiver.
ANALYSIS
SCPA Section 702 was originally created for the issuance of limited letters in estates where issuance of full letters was unnecessary (Matter of Stoller, 4 Misc 3d 538, 539 [Sur Ct, New York County 2004]). As amended in 1993, the statute provides authority to the court, in certain circumstances, to grant limited letters even when full letters have already been granted. Once such circumstance is articulated in subdivision (9) of SCPA 702, which permits the court to issue limited letters where there may be a claim of the estate against the executor in his or her individual capacity.
The minimum amount of proof needed to commence a proceeding against an executor in his or her individual capacity "is the submission of allegations made merely upon information and belief" (Matter of Leistner, 12 Misc 3d 1153(A) [Sur Ct, Nassau County 2006], citing Matter of Berger, NYLJ, Feb. 10, 2004, at 26, col 6 [Sur Ct, Westchester County]). The granting of limited letters "does not resolve the various contested factual issues concerning the validity of the transfers. It only allows inquiry into those transactions" (Matter of Oppmann, NYLJ, Nov. 30, 2001, at 17, col 1 [Sur Ct, Westchester County]). When there is a conflict of interest between the purported claim of the estate for which the limited letters are requested and the interests of the executor, the court may issue the letters in order to protect the estate (Matter of Vasquez, 162 Misc 2d 184 [Sur Ct, New York County 1994]; Matter of Oppmann, NYLJ, Nov. 30, 2001, at 17, col 1 [Sur Ct, Westchester County]; Matter of Rosasco, 19 Misc 3d 1109 [A] [Sur Ct, New York County 2008]).
CONCLUSION
Movant has submitted allegations, upon information and belief, of impropriety in the handling of decedent's assets both prior and subsequent to her death. These allegations are made against the executor and her siblings, and as such, the executor has a conflict of interest in determining whether to pursue these claims on behalf of the estate. [*3]
Based on the facts and documents presented, this court finds it appropriate to issue limited letters of administration to Helen LoTruglio for the purpose requested.
The petition is therefore granted.
Settle decree.
Dated: August 8, 2013
Edward W. McCarty IIIJudge of the
Surrogate's Court
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