| Matter of Rappaport |
| 2009 NY Slip Op 07851 [66 AD3d 1032] |
| October 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Alfred D. Rappaport, Deceased. Sylvia Rappaportet al., Appellants; Marguerite Downs Rappaport, Respondent. |
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In a probate proceeding, inter alia, in which Sylvia Rappaport and Lori Rappaport LaCroixpetitioned pursuant to SCPA 2103 to discover property withheld from the estate of the decedent,the petitioners appeal from a decree of the Surrogate's Court, Nassau County (Riordan, S.), datedJune 16, 2008, which, after a nonjury trial, dismissed the proceeding.
Ordered that the decree is affirmed, without costs or disbursements.
Shortly before their marriage in June 1990, Alfred D. Rappaport (hereinafter the decedent)and Marguerite Downs Rappaport (hereinafter the respondent) entered into a prenuptialagreement which provided that, upon the decedent's death, the respondent was to receive the sumof $100,000 after deducting the value of any other property that she would receive as a result ofor upon the decedent's death. The decedent died in 1998, and his will directed that therespondent receive the sum of $100,000 in full satisfaction of his obligation under the prenuptialagreement.
The petitioners, Sylvia Rappaport and Lori Rappaport LaCroix, co-executrices of thedecedent's estate, commenced this discovery proceeding against the respondent, alleging, interalia, that she had converted various items of the decedent's separate property which were part ofthe estate.
A petitioner in a discovery proceeding pursuant to SCPA 2103 has the burden of provingthat the subject property is an asset of the estate (see Matter of Santalucia, 10 AD2d 715[1960]). The burden then shifts to the respondent to demonstrate that the asset was properlydisposed of (see Matter of Humphreys, 35 Misc 2d 404 [1962]).
To the extent that the petitioners identified specific items of property alleged to be part of thedecedent's estate, the respondent offered satisfactory explanations for their disposition.Accordingly, the Surrogate's Court properly dismissed the proceeding (see Matter ofSantalucia, 10 AD2d 715 [1960]; Matter of Berardini, 238 App Div 433 [1933],affd 263 NY 627 [1934]; Matter of Humphreys, 35 Misc 2d 404, 405 [1962]).
The petitioners' remaining contentions are without merit. Mastro, J.P., Fisher, Angiolillo andLeventhal, JJ., concur.