Matter of Terzani

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[*1] Matter of Terzani 2014 NY Slip Op 51670(U) Decided on November 26, 2014 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2014
Sur Ct, Dutchess County

In the Matter of the Estate of John Terzani, Jr., Decedent.



2013-1000/A



MICHAEL H. SUSSMAN, ESQ.

SUSSMAN & WATKINS, ESQS.

Attorneys for Movants

1 Railroad Avenue, Suite 3

P.O. Box 1005

Goshen, New York 10924

PHILIP A. DeCARO, ESQ.

DeCARO & DeCARO, P.C.

Attorneys for the LAURA TERZANI

480 Mamaroneck Avenue

Harrison, New York 10528
James D. Pagones, J.

In this intestate estate, the parents of John Terzani, Jr. ("the decedent"), John Terzani, Sr. and Beverly Terzani ("parents"), have petitioned pursuant to SCPA §711 for a decree revoking the limited letters previously issued to Laura Terzani ("Laura"). Laura was the decedent's wife.

A hearing occurred at which testimony was received and documents introduced into evidence. The issues for the Court's determination are: (1) whether or not Laura has been delinquent in her duties as temporary administratrix by failing to proceed with a wrongful death action on behalf of the estate, and (2) whether or not the alleged hostility of interest between Laura [*2]and the decedent's family prevents her from acting in good faith in her role as temporary administratrix. The parties were afforded the opportunity to submit proposed findings of fact and closing arguments. The matter was marked fully submitted on October 27, 2014.

Rocco Rea, John Hoffman and Beverly Terzani testified on behalf of the petitioners. Laura Terzani testified in her defense. Laura was also called to testify during the petitioners' case in chief.

The certainty of words always depends upon the integrity of the speaker. "For the ear tests words, as the mouth tastes food." JOB 34:3. I had the unique opportunity to observe the testimony of the witnesses. In so doing, I considered the following factors in weighing their testimony: the interest or lack of interest of the witness in the outcome of the proceeding, potential bias or prejudice on the part of the witness, the appearance, sincerity, demeanor, the manner in which the witness gave testimony, the opportunity the witness had to observe the facts about which he or she testified and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence. (See PJI, Vol. 1A, 1:8.) I resolve all issues of credibility in favor of petitioners. (PJI, Vol. 1A, 1:41; Goldstein v. Guida, 74 AD3d 1143, 1144 [2d Dept. 2010]; Ivani v. Ivani, 303 AD2d 639, 640 [2d Dept. 2003].)

The court has taken judicial notice of undisputed court records and files. (Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill, 8 AD3d 485 [2d Dept. 2004].)

The following is the court's decision, stating the facts it deems essential. (Gouvis v. Gouvis, 44 AD3d 618 [2d Dept. 2007], lv appl den'd 10 NY3d 701 [2008]; Conklin v. State, 22 AD2d 481, 483 [3d Dept. 1965]; CPLR §4213[b].)

1. The decedent and Laura were married on September 14, 2002.

2. There were no children born of the marriage.

3. From January, 2009 to the date of decedent's death (August 20, 2013), the former marital residence was 120 Carpenter Road, Hopewell Junction, New York.

4. Laura removed herself from the former marital residence in June, 2013. She formerly resided at 112 Avalon Lake Road, Danbury, Connecticut. Laura indicated she was living in Fairfield, Connecticut at the time of the hearing.

5. The decedent and Laura were estranged at the time of his death. They had each retained counsel to handle their impending divorce. Laura's attorney prepared an opting out/separation agreement as a precursor to the divorce in July, 2013.

6. Laura maintained a Facebook account, using her maiden name for its title. A male friend of Laura posted pictures of [*3]himself with her in July, 2013. She denied he was her paramour.

7. Laura became aware of Facebook postings of herself with another man, Jesse Hinckley. The photo was posted on her Facebook page in which she used her maiden name, Laura Marino. Mr. Hinckley lived in Danbury, Connecticut, the same city where Laura was residing after she left the former marital residence. Laura testified she resumed using her maiden name for her Facebook account in March, 2013 when the decedent blocked her from his Facebook account.

8. On August 19, 2013, the day before the decedent's death, Laura was at the former marital residence at 120 Carpenter Road. She and the decedent engaged in an argument following which the decedent took a weapon from the residence and entered the woods nearby.

9. Laura called the police asking for assistance because she feared the decedent would harm himself. The New York State Police responded.

10. Laura told the police that she and the decedent were in the process of obtaining a divorce and that she had moved out of the former marital residence.

11. A stand off ensued. The culmination of this tragic set of facts occurred at approximately 2:30 a.m. on August 20, 2013, when the decedent was shot and killed by the police.

12. The parents paid the decedent's funeral bill. They asked Laura via a text message conveyed by John Hoffman to not attend decedent's funeral. Laura honored their request.

13. The parents, through counsel, filed a Notice of Claim with the New York State Police and Office of the Attorney General on or about November 18, 2013.

14. Laura was advised of the parents' intention to pursue a wrongful death action on behalf of their late son's estate. Their counsel sent her a waiver and consent form for her to sign in early December, 2013 which would allow them to obtain limited letters of administration for the purpose of instituting the action. Laura declined the offer through her then counsel, who also indicated she was disinclined to file a wrongful death action.

15. On December 20, 2013, Laura filed a petition for limited letters of administration. The petition estimates the value of the decedent's assets as personal property in the sum of $25,000.00 and a possible action for wrongful death against the New York State Police. No other assets are identified.

16. Limited letters were issued to Laura by a decree, dated December 20, 2013.

17. Pursuant to EPTL §4-1.1(a)(2), Laura would be the sole distributee of the estate. However, according to EPTL §5-4.4(a), the parents are deemed to be distributees, along with Laura, where damages are awarded for the decedent's wrongful death. The [*4]statute provides further that the court which determines the proportions of the pecuniary injuries suffered by the distributees shall also decide any question concerning the disqualification of a parent or a surviving spouse to share in the damages recovered. (EPTL §5-4.4[a][2].)

18. The decedent formerly served in the United States Marine Corps. He took great pride in his service. Among his personal possessions was memorabilia from his time in the Marine Corps which were of great sentimental value to him and his immediate family.

19. Laura testified she went through the decedent's belongings after his death but did not see his Marine Corps property.

20. Laura did not inventory the former marital residence until October, 2013. Seven (7) rooms were cataloged inclusive of the garage. One room was not inventoried.

21. Laura had a list of the items which were itemized from each room, but she lost it.

22. Laura could not recall the names of the attorneys with whom she consulted for the purpose of commencing a wrongful death action on behalf of the estate

23. Laura conceded she was advised that it was her responsibility to preserve and protect the decedent's property, but she did not understand her responsibilities.

24. Laura, through counsel, filed a notice of claim, dated August 11, 2014 on behalf of the estate, approximately one week before the hearing.

25. Laura authorized Mike Amatoro of Danbury, Connecticut and three other men to accompany her through the former marital residence for the purpose of retaining and disposing personal property. She gave them the instructions on what to keep and what to throw out.

26. A dumpster from a local carting company was utilized for removal of the discarded property. Laura testified she looked in the dumpster at least three (3) times to ascertain its contents.

27. Laura testified that some of the decedent's personal property was located in the garage and that she instructed Mr. Amatoro not to dispose of those items.

28. Laura never called the parents to ask them if they were interested in retrieving any of the decedent's belongings.

29. Rocco Rea is married to the decedent's sister. He has known Laura for about eleven (11) years.

30. In May, 2014, Rocco and his wife drove by the former marital residence and observed a dumpster on the property. He confirmed which carting company owned it. The company allowed him to go through the dumpster when it was positioned at its site for about two hours.

31. Rocco recovered the following items from the dumpster: a small steamer trunk, a family photograph, Marine Corps platoon photograph, diploma from Mahopac High School, four (4) red binders relating to the decedent's Marine Corps service, framed honorable discharge certificate, a large steamer trunk, tupperware containing a watch, necklace and chain, a wedding photo, laundry basket with decedent's clothing, a yellow plastic bag containing cards, and a picture of the decedent's dog.

32. Some of the items Rocco recouped were wet and in a state of disarray. The trunks were not damaged. There were other items in the dumpster which did not belong to the decedent. Rocco did not know who placed the decedent's property in the dumpster.

33. Rocco picked out what he believed the family would want to keep. He did not retrieve everything belonging to the decedent because of the time limitation imposed by the carting company.

34. Rocco drove by the former marital residence in July, 2014. He noticed another dumpster on the property, as well as no trespassing signs. He did not attempt to ascertain the contents of the dumpster.

35. John Hoffman has been married to the decedent's sister Jean for eighteen (18) years. He was well familiar with the decedent. The decedent's career as a Marine was very important to him, a great source of pride.

36. John acted as the liaison for the family with Laura via text messages and emails. He attempted to arrange for Laura to allow them to retrieve the decedent's belongings without success. Laura did provide the decedent's dog, which was put up for adoption. He stopped communicating with Laura in October, 2013 following a heated exchange.

37. The antipathy between Laura and the decedent's family permeated the hearing.

DECISION

It is settled that the grounds for disqualification of a fiduciary are limited to those set forth in SCPA §§707 and 711. (Matter of Shephard, 249 AD2d 748, 749-50 [3d Dept. 1998].) A temporary administrator qualifies as a fiduciary. (SCPA §103[21].) The party urging ineligibility bears the burden on this issue. (Matter of Krom, 86 AD2d 689, 690 [3d Dept. 1982], lv dismissed 56 NY2d 505 [1982].)

It is equally settled that "[a] potential conflict of interest between a fiduciary and a party interested in the estate does not warrant the...removal of, a fiduciary....Rather, it is actual misconduct, not a conflict of interest, that justifies the removal of a fiduciary." (Matter of Morningstar, 21 AD3d 1285, 1287 [4th Dept. 2005] quoting Matter of Shaw, 186 AD2d 809, 810 [2d Dept. 1992].)

Friction, enmity or oppugnancy between a fiduciary and beneficiaries can disqualify the fiduciary where such animosity interferes with the proper administration of the estate. (Matter of Venezia, 25 AD3d 717, 718 [2d Dept. 2006] lv appl den'd 15 NY3d 704 [2010].)

A fiduciary's dereliction in dealing with pending litigation can be evidence of misconduct or impassable hostility between the parties. (Matter of Palma, 40 AD3d 1157, 1158 [3d Dept. 2007].) The same premise holds true regarding a fiduciary who either resists or fails to commence litigation on behalf of an estate without adequate explanation to the detriment of potential beneficiaries.

The petitioners have met their evidentiary burden in this proceeding. The Court determines Laura Terzani was (1) delinquent in her duties as temporary administratrix by unreasonably delaying the pursuit of a wrongful death action on behalf of the estate and (2) the palpable hostility between Laura and the decedent's family obstructs her ability to properly administer the estate.

The Court bases its decision on the following compelling factors:

1. The decedent and Laura were in the throes of marital discord when he died under tragic circumstances. This strongly suggests a divided loyalty between Laura's self-interest and that of the decedent's surviving family members.

2. The manifest hostility between the parties.

3. The family's request that Laura not attend the decedent's funeral.

4. Laura's failure to completely inventory the former marital residence.

5. Laura's misplacement of the inventory list and her failure to follow up to verify what property had been discarded.

6. Laura's cavalier attitude regarding the disposal of the decedent's personal effects, in particular his military keepsakes which had great sentimental value for the parents.

7. Laura allowing strangers to dispose of household items and the decedent's personal effects without proper oversight.

8. Laura's failure to communicate with either the parents or other family members to inquire whether they had an interest in claiming any of the decedent's property.

9. Laura's delay in filing a notice of claim or pursue a potential wrongful death action from which the parents could benefit until one week before the hearing.

Laura Terzani is removed as temporary administratrix of the Estate of John Terzani, Jr., effective immediately. Indeed, the record also supports a finding, pursuant to SCPA §§711(2) and (8), that Laura is disqualified from serving in any fiduciary capacity by virtue of her improvident, wasteful acts. Whether [*5]Laura is disqualified as a surviving spouse, pursuant to EPTL §5-1.2, must await a further determination by this Court.

The petitioners have demonstrated their ability to serve as co-administrators. They are directed to forthwith file their combined oath and designation. They may serve without bond. They are restrained from comprising any cause of action and from collecting any proceeds thereof until the further order of any court of competent jurisdiction.

Counsel for the petitioners is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.

The foregoing constitutes the decision of the Court.



Dated:November 26, 2014

Poughkeepsie, New York

ENTER

________________________________

HON. JAMES D. PAGONES, A.J.S.C.