Matter of Meltzer

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[*1] Matter of Meltzer 2018 NY Slip Op 51844(U) Decided on December 17, 2018 Surrogate's Court, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2018
Surrogate's Court, Dutchess County

In the Matter of the Administration Proceeding in the Estate of, Jill H. Meltzer, Deceased.



2018-535



AMANDA KOLCZNISKI

Petitioner, Pro Se

[redacted]

West Sayville, New York 11796

STEVEN H. KLEIN, ESQ.

Attorney for Cross-Petitioner

JUSTINA KOLCZNISKI

40 Garden Street

Poughkeepsie, New York 12601
James D. Pagones, J.

In this Administration Proceeding, petitioner Amanda Kolczniski, daughter of the decedent, seeks letters of administration. Justina Kolczniski, also daughter of the decedent, cross-petitions for letters of administration.



The following papers were considered:

Petition-Verification 1-2

Cross-Petition-Verification 3-4

Affidavit/Letter 5

Affidavit 6

In this contested administration proceeding, decedent's daughters Amanda Kolczniski and Justina Kolczniski have petitioned/cross-petitioned the Court for letters of administration. The parties attempted to resolve the petition and cross-petition by agreeing to joint administration of the estate. The attempt at settlement failed, as the petitioner was unable to agree with the terms of joint administration as provided to her by counsel for the cross-petitioner.

Where, as here, the petitioner and cross-petitioner, as two of the decedent's children, are entitled to an equal share in the estate and are "equally entitled to administer the court may grant letters of administration to one or more of such persons" (see SCPA §1001[1][f][I]; In re Estate of Djeljaj, 30 Misc 3d 1229[A][Sur Ct, Bronx County 2011]). In the absence of circumstances militating in favor of a different result, the court will appoint the distributee selected by the distributees entitled to the largest share of the estate or, if the shares are equal, the one preferred by a majority of the distributees (see In re Mercer, 26 Misc 3d 1231[A][Sur Ct, Bronx County 2010]). Generally, where apparent friction, antagonism or hostility exists between persons in the same class of priority for appointment and they are unable to agree as to an appointment, the court will avoid issuing letters jointly to them, as distributees who clash over who should receive letters are probably incapable of administering the estate together (id.).

Here, the papers as submitted make it very clear that the petitioner and cross-petitioner have a relationship marked with friction. To jointly provide letters of administration to the petitioner and cross-petitioner would frustrate the effective administration of the decedent's estate. Thus, the Court must exercise its discretion in granting letters of administration to either the petitioner, cross-petitioner or a neutral third party (see Matter of Eisenstein, 158 AD2d 597 [2nd Dept 1990]; In re Estate of Florio, 26 Misc 3d 1048 [Sur Ct, Nassau County 2009]). In exercising its discretion to select one of multiple distributees to grant letters of administration, the Court may consider such factors as each distributee's (1) relationship with the decedent; (2) business experience; and, (3) familiarity with the decedent's affairs (see In re Estate of Florio, 26 Misc 3d 1048 [Sur Ct, Nassau County 2009]). Ultimately, the court will use its discretion and appoint the distributee whose appointment the court deems to be in the estate's best interest (id.).

The record before the Court demonstrates that Amanda's involvement with the decedent's affairs has been substantially greater than that of the cross-petitioner. Petitioner has been active in arranging the funeral of the decedent, attending conferences with investigators and district attorneys concerning the investigation into the death of her mother, she has emptied the contents of her mother's apartment, closed bank accounts and handled all legal matters in relation to the decedent's estate. Further, the petitioner has agreed to communicate openly with cross-petitioner's counsel if awarded letters of administration. The affidavit of Justina Kolczniski provides the Court no relevant information concerning the factors enunciated above. She specifically states that she does not object to her sister's petition, but she seeks that letters be issued jointly.

Accordingly, based upon the submission of the parties, a hearing is unnecessary. Letters of administration will issue to petitioner Amanda Kolczniski, subject to her qualifying by law. The cross-petition filed by Justina Kolczniski is dismissed.

This constitutes the decision of the court. Decree signed contemporaneously herewith.



Dated: December 17, 2018

Poughkeepsie, New York

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