Surrogate's Court of the City of New York, Bronx CountyMar 1, 2011
2009-184/A (N.Y. Misc. 2011)


Decided March 1, 2011.

Michael M. Lippman, Esq., for Angelina Donovic, petitioner.

Brendan P. Kearse, Esq., for Pashko Gjejaj, cross petitioner.

In this estate, a daughter of the decedent petitioned for letters of administration and a son of the decedent filed a cross petition. Following a bench trial, and for the reasons stated on the record in open court, the court granted limited letters of administration to the daughter and denied the cross petition of the son, without prejudice to the right of any eligible distributee to be appointed the administrator of the estate in the event that assets are ultimately recovered on behalf of the estate. The letters that issue to the petitioner shall be limited pursuant to the provisions of SCPA 702 (1) with regard to any cause of action that might exist in favor of the estate and further limited to preclude the petitioner from settling any cause of action without leave of this court on notice to all interested parties. In addition, the petitioner is to provide counsel for the cross petitioner with a copy of any papers filed in any proceeding as well as any records recovered from an attorney who apparently was acting as a de facto fiduciary of this estate.

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" (SCPA 1001 [f] [i]). In the absence of circumstances establishing that a contrary result is in the best interests of the estate, the court will exercise its discretion in favor of the distributee selected by the distributees entitled to the larger share of the estate (see Matter of Rizaj, 16 Misc 3d 1102 [A], 2007 NY Slip Op 51229 [U]; Matter of Doyle, 10 Misc 3d 1077 [A], 2006 NY Slip Op 50108 [U], citing Matter of Edelson, 88 AD2d 640; Matter of Nocera, 10 Misc 2d 495; Matter of Dehart, 8 Misc 2d 531; Matter of Samuels, 204 Misc 842. Nonetheless, the best interests of the estate trumps the collective share of the distributees in favor of one of two distributees equally entitled to administer the estate, and the court will appoint the distributee who, under all of the circumstances, is better suited to administer the estate (see Matter of Mercer, 26 Misc 3d 1231 [A], 2010 NY Slip Op 50333 [U], citing Matter of Eisenstein, 158 AD2d 597; Matter of Florio, 26 Misc 3d 1048).

Here, although it appears that a majority of the eligible distributees favor the cross petitioner over the petitioner, the court ruled in favor of the petitioner because, inter alia: (1) the parties acknowledged they were unable to serve as co-administrators; (2) the cross petitioner appears to have acted as a de facto co-fiduciary of this estate for a period well in excess of a decade without ever obtaining fiduciary status; and, (3) during this decade-long period, the cross petitioner received a substantially larger distribution than the petitioner, an amount that may well exceed the amount to which he will ultimately be entitled. Accordingly, for the reasons stated in open court and in accordance with this decision, limited letters of administration shall issue to the petitioner and the cross petition is denied.

Settle decree.