Matter of Bodan

[*1] Matter of Bodan 2013 NY Slip Op 52291(U) Decided on December 19, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2013
Sur Ct, Nassau County

Probate Proceeding, Will of Charles Bodan a/k/a CHARLES M. BODAN and CHARLES MARTIN BODAN, Deceased.



2013-374128



Farrell Fritz (for Estate)

1320 RXR Plaza

Uniondale, NY 11556

Frank Romano & Associates (for Objectants)

51 East Main Street

Smithtown, NY 11787

Edward W. McCarty III, J.

In this contested probate proceeding the proponent has filed an application to for an extension of preliminary letters; the objectants oppose the application. The court notes there are also pending before the court a motion brought by the petitioner and a cross-motion by the objectants, returnable on October 23, 2013.

The opposition to the instant application to extend the preliminary letters rests primarily on the ground that the petitioner purportedly misled the court on the original petition for preliminary letters testamentary and is therefore not qualified to serve. Specifically, the objectants argue that the petitioner indicated on the original petition that the "decedent had businesses that needed daily attention" which the objectants contend is untrue. They argue that the petitioner, the decedent's attorney, knew that the businesses were being ably run by one of the objectants, decedent's nephew and a partner in the businesses. The fact that a surviving partner was at the helm of decedent's businesses does not obviate the need for a preliminary executor. Nor does it appear to the court that any misrepresentation was made as the original petition clearly indicates the decedent was a 50% owner of the businesses.

Moreover, the reference to the need to monitor the decedent's business was not the only reason put forth as the basis for the issuance of preliminary letters testamentary. The petition also indicates that the decedent's brokerage accounts, valued at approximately $4 million, held [*2]marketable securities that also needed monitoring. Finally, the petition indicates that the decedent's personal income taxes needed to be prepared and filed and that a delay was likely to ensue in the probate proceeding.

It is well settled that the testator's choice of executor is entitled to great deference (Matter of Leland, 219 NY 387 [1916]) and that not every breach of fiduciary duty warrants removal of the fiduciary (Matter of Israel, 64 Misc 2d 1035 [Sur Ct, Nassau County 1970]). The purpose of SCPA 1412 and the issuance of preliminary letters testamentary is to provide for immediate administration of an estate. Further, the statute is intended to reduce the possibility of frivolous pre-probate contests (Matter of Turner, NYLJ, May 20, 2008, at 27, col 3 [Sur Ct, Nassau County]; Matter of Hubbard, Aug. 25, 1997, at 30, col 2 [Sur Ct, Bronx County]). Therefore, it is not necessary that the court conduct a hearing on objections to the issuance of preliminary letters testamentary (Matter of Piterniak, NYLJ, Sept. 10, 2002, at 23, col 1 [Sur Ct, Suffolk County]). Nor will preliminary letters be withheld in the absence of a showing of a likelihood of harm to the estate (Matter of Vermilye, 101 AD2d 865 [2d Dept 1984]).

Here, there has been no showing that the assets of the estate are at peril in the hands of the preliminary executor nor does the court find the objectants' allegation of intentional misrepresentation on the part of the petitioner to be of sufficient weight to deny the extension of preliminary letters.

Accordingly, the order previously settled for the extension of preliminary letters testamentary will be signed.

This is the decision and order of the court.

Dated: December 19, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court