| Matter of Chase |
| 2007 NY Slip Op 07953 [44 AD3d 1180] |
| October 25, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Margaret L. Chase, Deceased.Virginia Sanford et al., Respondents; George W. Chase, Appellant. |
—[*1] Thaler & Thaler, Ithaca (Katrina Thaler-Medeiros of counsel), for respondents.
Cardona, P.J. Appeals (1) from an order and decree of the Surrogate's Court of TompkinsCounty (Rowley, S.), entered March 31, 2006, which, among other things, granted petitioners'application to revoke letters of administration issued to respondent, and (2) from an order of saidcourt, entered October 10, 2006, which, among other things, granted petitioners' motion todismiss respondent's objections to the appointment of petitioners Virginia Sanford and RichardA. Chase as administrators of decedent's estate.
Respondent was decedent's husband; petitioners are three of her children. Following herdeath in 1998, respondent sought and was granted letters of administration over decedent's estate.Six years later, petitioners sought an account of the estate's assets as well as judicial settlement ofthe estate. Petitioners alleged, among other things, that respondent had dissipated the estate'sassets and commingled estate assets with his own.
Thereafter, respondent failed to comply with several orders of Surrogate's Court directinghim to file both a proper accounting and a petition for judicial settlement of the estate. Followingvarious motions for relief by petitioners, the court found that respondent did not file an accountand a petition for judicial settlement, commingled estate funds with his own, attempted totransfer title of real property constituting the primary asset of the estate for less than marketvalue, and delayed administration of the estate without just cause. The court, among [*2]other things, revoked respondent's letters of administration andenjoined him from entering the estate's property and interfering with the administration of theestate. Petitioners Richard A. Chase and Virginia Sanford petitioned for letters of administrationde bonis non. Respondent filed objections, which Sanford and Chase moved to dismiss. Findingthat the objections lacked merit and that the motion to dismiss was unopposed, the court grantedthe motion and appointed Sanford and Chase as successor administrators of decedent's estate. Onthese appeals, respondent argues that Surrogate's Court should have held hearings beforerevoking his letters of administration, issuing a restraining order or dismissing his objections.
SCPA 719 states the grounds upon which letters of administration may be revoked without ahearing, which include, as relevant here, "[w]here the fiduciary . . . having beenordered to account, fails to file an account within such time and in such manner as directed by thecourt" (SCPA 719 [1]) and "[w]here he mingles the funds of the estate with his own" (SCPA 719[7]). Also incorporated into SCPA 719 are those situations enumerated in SCPA 711, including"[w]here [the fiduciary] has wilfully refused or without good cause neglected to obey any lawfuldirection of the court contained in any decree or order" (SCPA 711 [3]).
Here, it is undisputed that, among other things, respondent failed to file an adequate accountas directed in Surrogate's Court's order of December 22, 2004, failed to file a petition for judicialsettlement of the estate as directed by that same order, and commingled assets, as conceded in theinadequate account eventually submitted by him on April 8, 2005. "[W]here the misconduct isestablished by undisputed facts or concessions, [or] the fiduciary's in-court conduct causes suchfacts to be within the court's knowledge," Surrogate's Court may remove the fiduciary without ahearing (Matter of Duke, 87 NY2d 465, 472 [1996]; see Matter of Greenway, 241AD2d 735, 736 [1997]). Accordingly, a hearing was not required in this proceeding.Furthermore, to the extent that respondent blames his then-attorney for some of the conduct citedabove, we note that he retained his own counsel and must then identify extraordinarycircumstances to establish entitlement to a hearing based on a claim of ineffective assistance ofcounsel (see Xiaokang Xu v XiaolingShirley He, 24 AD3d 862, 864 [2005], lv denied 6 NY3d 710 [2006];Olmstead v Federated Dept. Stores, 208 AD2d 979, 982 [1994], lv denied 85NY2d 811 [1995]; Department of Social Servs. v Trustum C.D., 97 AD2d 831 [1983],lv denied 61 NY2d 605 [1984]). He has failed to do so.
Respondent also contends that he was entitled to a hearing on his objections to the petition ofSanford and Chase for letters of administration. However, respondent did not oppose petitioners'subsequent motion to dismiss the objections as failing to state an adequate ground to holdSanford and Chase ineligible. Moreover, his stated objections that Sanford and Chase do notperform maintenance on the property or have adequate knowledge of farming practices arepatently insufficient to disqualify them from the role of fiduciary (see SCPA 707;Matter of Shephard, 249 AD2d 748, 749 [1998]; Matter of Foss, 282 App Div509, 511 [1953]). Accordingly, a hearing was not necessary and the motion to dismiss theobjections was properly granted.
With respect to the restraining order issued by Surrogate's Court, we note that respondentdoes not argue the underlying merits, but rather claims that the court should have held a hearingbefore deciding the matter. In any event, we need not decide whether the court erred. Petitionerssought a temporary restraining order enjoining respondent's entrance onto the Trumansburg Roadproperty and his interference with the administration of the estate "during the [*3]pendency of this matter." The matter has now been determined,respondent has been removed and new administrators have been appointed. Therefore, finding nodiscernable reason to continue the restraining order under these circumstances, we now vacatethose parts of Surrogate's Court's March 31, 2006 order and decree which granted petitioner'sFebruary 9, 2006 request for a restraining order.
Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order and decree ismodified, on the facts, without costs, by vacating so much thereof as enjoined respondent fromentering the property located at 1635 Trumansburg Road, Ithaca, New York, and enjoinedrespondent from improperly interfering with the due administration of the estate, and, as somodified, affirmed. Ordered that the order is affirmed, without costs.