| Matter of Carbone |
| 2012 NY Slip Op 08519 [101 AD3d 866] |
| December 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of Carmelo Carbone, Deceased. Mike Carbone,Appellant; Debra Betz, Respondent. |
—[*1] Bashian & Farber, LLP, White Plains, N.Y. (Andrew Frisenda and Irving O. Farber ofcounsel), for respondent.
In a probate proceeding in which Mike Carbone, the executor of the estate, petitioned tojudicially settle his intermediate account of the estate, Mike Carbone appeals (1), as limited byhis brief, from so much of an order of the Surrogate's Court, Westchester County (Scarpino, Jr.,S.), dated June 2, 2011, as, upon a decision of the same court dated April 13, 2011, granted thosebranches of the motion of the objectant Debra Betz which were for summary judgment grantingcertain objections to the intermediate account and imposing certain surcharges and interest uponMike Carbone, (2), as limited by his brief, from so much of a second order of the same court,also dated June 2, 2011, as, upon the decision, in effect, granted that branch of the motion of theobjectant Debra Betz which was for summary judgment granting certain other objections andimposing certain surcharges and interest upon Mike Carbone related to professional servicesallegedly rendered by Carmela Smart, and (3) from an order of the same court dated September 9,2011, which denied his motion for leave to renew or reargue his opposition to the summaryjudgment motion of the objectant Debra Betz.
Ordered that the appeal from so much of the order dated September 9, 2011, as denied thatbranch of the appellant's motion which was for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the first order dated June 2, 2011, is affirmed insofar as appealed from; and it isfurther,
Ordered that the second order dated June 2, 2011, is affirmed insofar as appealed from; and itis further,
Ordered that the order dated September 9, 2011, is affirmed insofar as reviewed; and it isfurther,
Ordered that the respondent is awarded one bill of costs, payable by the appellant personally.[*2]
The petitioner, Mike Carbone, was named in thedecedent's will as executor of the decedent's estate. After the decedent died, his primarybeneficiaries, his daughters Debra Betz and Christina Carbone-Lopez, sought an accounting fromCarbone. Carbone failed to provide an accounting until after he was held in contempt by theSurrogate's Court. When Carbone finally filed an intermediate account of the estate, along with apetition to judicially settle the account, Betz and Carbone-Lopez filed objections to the account,asserting that it was incomplete and inaccurate. The court agreed, and directed Carbone to file anamended account.
Carbone filed an addendum to his account, but Betz and Carbone-Lopez again filedobjections, asserting that the amended account remained incomplete and inaccurate, and Betzadditionally filed supplemental objections to the amended account. Betz moved, inter alia, forsummary judgment granting her objections, contending, among other things, that Carbone hadmismanaged the estate and engaged in self-dealing in breach of his fiduciary duty. TheSurrogate's Court, in two orders, inter alia, granted certain branches of Betz's motion andimposed surcharges and interest upon Carbone for various undocumented administrationexpenses and for assets omitted from his account. Carbone moved for leave to renew or rearguehis opposition to Betz's motion, and the court denied his motion.
Surrogate's Court Procedure Act § 2211 grants the Surrogate's Court broad authority to"take the account, hear the proofs of the parties respecting it and make such order or decree asjustice shall require" (SCPA 2211 [1]; see Matter of Gourary v Gourary, 94 AD3d 672, 673 [2012]; Matter of Rockefeller, 44 AD3d1170, 1172 [2007]; Matter of Acker, 128 AD2d 867 [1987]; see also Matter ofStortecky v Mazzone, 85 NY2d 518, 526 [1995]). "The Surrogate's Court is empowered tostate the account and make such a decree as justice requires notwithstanding the failure or refusalof a fiduciary to file an amended account" (Matter of Wilkinson, 152 AD2d 585, 586[1989]). Moreover, because the Surrogate's Court "is governed by principles of equity as well asof law, [it] is not prevented by any legal restriction from doing exact justice to any of the parties"(Matter of Schummers, 210 App Div 296, 300 [1924], affd 243 NY 548 [1926]).
A fiduciary acting on behalf of an estate is required to employ such diligence and prudence tothe care and management of the estate assets and affairs as would prudent persons of discretionand intelligence (see King v Talbot, 40 NY 76, 85-86 [1869]), accented by " '[n]othonesty alone, but the punctilio of an honor the most sensitive' " (Matter of Rothko, 43NY2d 305, 320 [1977], quoting Meinhard v Salmon, 249 NY 458, 464 [1928]; seeMatter of Skelly, 284 AD2d 336 [2001]; Matter of Robinson, 282 AD2d 607 [2001];Matter of Scott, 234 AD2d 551, 552 [1996]). Where the beneficiary of an estate hasdemanded an accounting, " 'the party submitting the account has the burden of proving that he orshe has fully accounted for all the assets of the estate, and this evidentiary burden does notchange in the event the account is contested. While the party submitting objections bears theburden of coming forward with evidence to establish that the account is inaccurate or incomplete,upon satisfaction of that showing the accounting party must prove, by a fair preponderance of theevidence, that his or her account is accurate and complete' " (Matter of Tract, 284 AD2d543, 543 [2001], quoting Matter of Schnare, 191 AD2d 859, 860 [1993] [citationsomitted]; see Matter of Rubin, 30AD3d 668, 669 [2006]; Matter ofCurtis, 16 AD3d 725, 726-727 [2005]; Matter of Robinson, 282 AD2d at 607;Matter of Anolik, 274 AD2d 515, 515-516 [2000]; see also Matter of Mink, 91 AD3d 1061, 1063-1064 [2012]).Where the objectant satisfies the prima facie burden and the fiduciary fails to rebut it, theSurrogate's Court may impose surcharges and, where appropriate, may also impose interestcharges (see Matter of Gourary v Gourary, 94 AD3d at 673; see Matter of Mink,91 AD3d at 1064; Matter ofWitherill, 37 AD3d 879, 880-881 [2007]; Matter of Scott, 234 AD2d at 552;Matter of Acker, 128 AD2d at 868; Matter of Etoll, 101 AD2d 935, 936 [1984]).
Here, Betz satisfied her prima facie burden of demonstrating that Carbone's account wasinaccurate or incomplete, and Carbone failed to rebut that showing. Moreover, because thelegitimacy of most, if not all, of Betz's objections was apparent from a plain reading of theaccount, no factual issues were presented which would necessitate the conducting of a hearing(see Matter of Schnare, 191 AD2d at 860-861). In any event, "[a]s the [executor] ofdecedent's estate, it was incumbent upon petitioner to maintain 'clear and accurate records,'absent which 'all presumptions . . . and all doubts are to be resolved adversely to[him]' " (Matter of Mink, 91 AD3d at 1063-1064, quoting Matter of Camarda, 63AD2d 837, 837 [1978]). Similarly, the record contains ample proof to [*3]support the Surrogate Court's determination that Carbone wastedthe estate's assets, improperly omitted assets from his account, and engaged in impermissibleself-dealing (see e.g. Greene vGreene, 92 AD3d 838, 839 [2012]; Ross v Ross Metals Corp., 87 AD3d 573, 575 [2011]; Matter ofPassuello, 184 AD2d 108, 112-113 [1992]; Matter of Etoll, 101 AD2d at 936;Matter of Moschak, 48 Misc 2d 838, 838-839 [1966]). Since Carbone failed to raise atriable issue of fact in opposition to Betz's summary judgment motion, the Surrogate's Courtproperly granted the subject branches of Betz's motion.
Since Carbone failed to proffer a reasonable explanation for failing to submit his additionalevidence in opposition to Betz's moving papers, the Surrogate's Court providently exercised itsdiscretion in denying that branch of his motion which was for leave to renew his opposition toBetz's summary judgment motion (see CPLR 2221 [e] [2]; Matter of Nelson v Allstate Ins. Co., 73AD3d 929 [2010]; Coccia vLiotti, 70 AD3d 747, 753 [2010]; Gonzalez v Vigo Constr. Corp., 69 AD3d 565, 566 [2010]; Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389, 391 [2008]; Renna v Gullo, 19 AD3d 472, 473 [2005]).
Carbone's remaining contentions are without merit. Skelos, J.P., Florio, Leventhal and Hall,JJ., concur.