| Matter of Goliger |
| 2010 NY Slip Op 03331 [72 AD3d 966] |
| April 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Eleanor E. Goliger, Deceased. DavidGoliger, as Executor of Eleanor E. Goliger, Deceased, Respondent; Donna M. Goliger, asFormer Executor of Eleanor E. Goliger, Deceased, Appellant. |
—[*1] La Reddola, Lester & Associates, LLP, Garden City, N.Y. (Robert J. La Reddola ofcounsel), for respondent.
In a probate proceeding in which David Goliger, the executor of the estate, petitionedpursuant to SCPA 2205 to compel an accounting, Donna M. Goliger, the former executor of theestate, appeals from (1) an order of the Surrogate's Court, Nassau County (Riordan, S.), datedJune 3, 2008, which denied her motion, inter alia, for a credit for payments allegedly made byher from personal funds for accounting and legal services rendered on behalf of the estate and tovacate or reduce a surcharge in the sum of $26,166 imposed for the late payment of estate taxesby an order of the same court dated February 1, 2007, made after a nonjury trial, and (2) an orderof the same court dated March 27, 2009, which denied her motion, denominated as one for leaveto renew, but which was, in actuality, one for leave to reargue.
Ordered that the appeal from the order dated March 27, 2009, is dismissed; and it is further,
Ordered that the order dated June 3, 2008 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent payable by the appellantpersonally.
The decedent, Eleanor E. Goliger, died in 2002, and was survived by her daughter, DonnaM. Goliger (hereinafter the appellant), and her son, David Goliger, the current executor of theestate (hereinafter the respondent). The respondent petitioned pursuant to SCPA 2205 to compelthe appellant to account, and the appellant rendered her account in June 2003.
During a three-day trial on the respondent's objections to the appellant's account, the partiesresolved various issues in a stipulation of settlement (hereinafter the stipulation), which set forth,inter alia, certain charges to be repaid by the appellant, and provided that the Surrogate's Courtwould determine the remaining issues.[*2]
The remaining issues were determined after trial by orderdated February 1, 2007 (hereinafter the February 2007 order). The February 2007 order fixed thereasonable fees of the former attorney and former accountant for the estate in the respective sumsof $25,000 and $10,000. In that order, the Surrogate's Court further determined that the appellantlacked a reasonable excuse for failing to make timely payment of the federal and state estatetaxes, and imposed a surcharge upon the appellant in the sum of $26,166 for penalties, interest,and unpaid taxes (hereinafter the surcharge). The February 2007 order also determined that theappellant "may make claim as to such funds as were expended by her on behalf of the Estateupon the furnishing of adequate proof."
The appellant moved, inter alia, for a credit representing payments allegedly made by herfrom personal funds for accounting and legal services rendered on behalf of the estate and tovacate or reduce the surcharge. The Surrogate's Court denied the motion in the order dated June3, 2008.
The appellant's subsequent motion, denominated as one for leave to renew her prior motion,was denied in the order dated March 27, 2009.
Contrary to the appellant's contention, in the absence of competent proof that she paid theestate's former accountant and attorney with personal funds, she is not entitled to a credit for thealleged payments. "The burden of proving a claim of an executor for expenses of administrationrests upon [the executor] and [the executor] must show that it was of the value charged"(Matter of Shulsky, 34 AD2d 545, 548 [1970]; cf. Vinlis Constr. Co. v Roreck,30 AD2d 668 [1968], mod on other grounds 27 NY2d 687 [1970]).
The surcharge was properly imposed, as it reflects the exact amounts which the federal andstate tax authorities charged the estate for penalties, interest, and unpaid taxes (cf. Matter ofSchaich, 55 AD2d 914, 915 [1977]).
The appeal from the order dated March 27, 2009, must be dismissed. The appellant's motion,denominated as one for leave to renew, was, in actuality, one for leave to reargue, because it wasnot based upon new facts and was based on the appellant's assertion that the courtmisapprehended the facts (see CPLR 2221 [d] [2]; [e] [2]; Dess v LRM Bldrs., LLC, 56 AD3d716 [2008]). An order denying a motion for leave to reargue is not appealable (see Somma v Richardt, 52 AD3d813 [2008]; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660 [1996];Paulus v Kuchler, 214 AD2d 608 [1995]).
The appellant's remaining contentions are without merit. Mastro, J.P., Fisher, Belen andAustin, JJ., concur.