Opinion
No. 2018-37/a Mot. Seq. 1
08-02-2021
In the Matter of the Estate and Probate Proceeding of: DOLORES A. WUNNER, Deceased.
Law Office of Michael F Sirignano Attn: Michael F Sirignano, Esq. Attorneys for Petitioner Gregory Wunner The Law Office of Joseph A. Charbonneau Attn: Joseph A. Charbonneau, Esq. Counsel for Respondent Mitchell E. Wunner
Unpublished Opinion
Law Office of Michael F Sirignano Attn: Michael F Sirignano, Esq. Attorneys for Petitioner Gregory Wunner
The Law Office of Joseph A. Charbonneau Attn: Joseph A. Charbonneau, Esq. Counsel for Respondent Mitchell E. Wunner
DECISION& ORDER
Molé, Surrogate
The following papers were read on the Order to Show Cause signed June 8, 2021 (Mot. Seq. 1), filed by petitioner GREGORY WUNNER for an order, pursuant to SCPA 711 (2) and (8), to remove MITCHELL E. WUNNER as the Executor of Dolores A. Wunner's estate, to substitute and appoint GREGORY WUNNER as the executor of said estate; and for an order directing the Executor, MITCHELL E. WUNNER, to turn over all estate assets to him; denying or reducing the Executor's commissions; surcharging the Executor for wasting estate property; and awarding GREGORY WUNNER reasonable counsel fees in commencing this miscellaneous proceeding:
Papers:
Order to Show Cause, Verified Petition dated June 1, 2021, Exhibits A-I Memorandum of Law in Opposition, Affidavit in Opposition of Mitchell E. Wunner Reply Memorandum of Law, Reply Affidavit in Support of Gregory Wunner
Upon review of the foregoing papers, the Court determines as follows:
I. Facts
Dolores A. Wunner (hereinafter the decedent) died on November 15, 2017. Decedent was survived by her three children, including, as relevant here, Gregory Wunner and Mitchell E. Wunner. Decedent died testate with a "Last Will and Testament" dated September 29, 2000. Decedent's estate consists of, among other assets, several lots of real property, including her single-family home in the Village of Brewster, a commercial parcel in the Town of Patterson that is operated as an auto repair garage, a multi-family rental property made up of four apartments in the Village of Brewster, and two one-acre vacant lots located in the Town of Patterson. The will devises, among other things, that Gregory Wunner and Mitchell E. Wunner are designated as one-third beneficiaries of all tangible personal property and one-third residuary beneficiaries. Also, there is a specific bequest of $50,000 each to Gregory Wunner's two daughters. Also in her will, decedent nominates Mitchell E. Wunner as the Successor Executor (hereinafter the Executor). In February 2018, the Executor petitioned for letters testamentary to probate decedent's estate and was ultimately granted same by decree dated March 23, 2018.
Petitioner and respondent are brothers.
Gregory Wunner's daughters are Kristen N. Wunner and Allison C. Wunner.
Decedent had originally named her spouse Ernest R. Wunner as the executor in the will. However, decedent's husband predeceased her in 2001, thus subsequently leading to Mitchell E. Wunner's appointment as the successor executor nominated in the will.
On June 8, 2021, Gregory Wunner commenced this miscellaneous proceeding by filing a verified petition brought by an order to show cause, seeking various relief including, as is relevant here, revoking the letters testamentary issued to the Executor and appointing Gregory Wunner as the substitute executor. The Court signed the Order to Show Cause directing service of it and all papers upon which it is based, set forth a briefing schedule therein, and scheduled oral argument on the matter for July 23, 2021.
II. Parties' Contentions
Gregory Wunner moves pursuant to SCPA 711 (2) and (8) to remove the Executor as the fiduciary in charge of the decedent's estate, and to have him substituted in his place. Additionally, Gregory Wunner seeks an order directing the Executor to transfer all estate assets to him; denying or reducing the Executor's commissions had he properly performed his fiduciary duties; surcharging the Executor for wasting estate property; and awarding him reasonable counsel fees in commencing this proceeding.
Gregory Wunner argues that the Executor is not qualified to serve in a fiduciary capacity inasmuch as he has substantially delayed administering the decedent's estate since his appointment more than three years ago. He avers that the Executor allowed decedent's former residence to fall into despair by failing to maintain the home, thus diminishing its fair market value; failed to list the real properties for sale; failed to complete the $50,000 bequest to his two daughters which were to be used for their education; and that the Executor has allegedly withheld trust accounts that are not part of the estate and were established by the decedent for her children as the designated beneficiaries.
Gregory Wunner annexed several photographs to his petition as exhibits "E" through "H" for the purpose of demonstrating the current conditions of decedent's former home, the auto repair garage in Patterson, and the common areas of the multi-family apartment building in Brewster. However, it is impossible to ascertain the true conditions of those properties from the black and white photographs attached to the petition. As such, the undersigned directed Gregory Wunner's counsel at oral argument to submit color photographs to the Court and the Executor's attorney, which were subsequently provided, along with a letter dated July 26, 2021. Counsel are, however, advised that this Court does not permit or condone litigation by letter whatsoever. Arguments, if any, should be asserted in one's motion papers. The motion here was already fully briefed and oral argument has concluded.
Gregory Wunner thus contends that the Executor has wasted or misapplied estate assets, improvidently managed or injured estate property, and his inaction in the last three plus years confirms that he has done virtually nothing to effectuate the decedent's wishes. For these alleged reasons, Gregory Wunner urges that the Executor's actions and omissions warrant his removal as the estate fiduciary.
In opposition, the Executor counters that the petition is replete with disputed, not conceded, facts about his conduct and it fails to provide sufficient facts that are necessary to warrant his removal. The Executor maintains that the Court must conduct a hearing in this matter prior to summarily removing him. The Executor posits that the petition simply alleges that Gregory Wunner is highly frustrated at the pace which the estate is being administered, yet the estate has not incurred any waste or loss. Also, the Executor points out that no commissions have been expended, that he has marshalled estate assets, and that his prior counsel did not provide helpful legal representation in connection with his role as the fiduciary to manage the estate.
In reply, Gregory Wunner contends that no hearing is needed inasmuch as the motion papers contain undisputed facts which conclusively establish that the Executor does not fully comprehend an appointed fiduciary's duties and his continued appointment would jeopardize the estate. Further, Gregory Wunner asserts that the Executor is unfit to continue serving in such role because he has no prior experience or knowledge of an executor's responsibilities.
III. Legal Analysis
Letters testamentary may be revoked due to, among other grounds, when the fiduciary wastes or improperly applies estate assets, based on "misconduct in the execution of his [or her] office or dishonesty, drunkenness, improvidence or want of understanding, [the executor] is unfit for the execution of his [or her] office," or when one who "does not possess the qualifications required of a fiduciary by reason of substance abuse [formerly drunkenness], dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office (SCPA 711 [2], [8]; Matter of Coons, 149 A.D.3d 731, 732-733 [2d Dept 2017]; Matter of Palma, 40 A.D.3d 1157, 1158-1159 [3d Dept 2007]).
"Want of understanding . . . means an absence of intelligence sufficient to comprehend the nature and extent of fiduciary duties. Improvidence refers to habits of mind and conduct which become a part of the man [or woman] and render him [or her] generally, and under all ordinary circumstances, unfit for the trust or employment in question" (Matter of Britton, 173 Misc.2d 300, 302 [Sur Ct, Westchester County, 1997]).
SCPA 719 states the grounds upon which letters testamentary may be revoked without a hearing, including, "[w]here the fiduciary . . . having been ordered to account, fails to file an account within such time and in such manner as directed by the court" (SCPA 719 [1]), "[w]here [the fiduciary] mingles the funds of the estate with his own" (SCPA 719 [7]), or "[w]here [the fiduciary] has willfully refused or without good cause neglected to obey any lawful direction of the court contained in any decree or order" (SCPA 711 [3]; see Matter of Chase, 44 A.D.3d 1180, 1182 [3d Dept 2007]).
Importantly, "[t]he removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to a judicial nullification of the testator's choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established" (Matter of Duke, 87 N.Y.2d 465, 472-473 [1996]). "The Surrogate may remove a fiduciary without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge, or where facts warranting an amendment of letters are presented to the court during a related evidentiary proceeding. Thus, revoking a fiduciary's letters without a hearing pursuant to SCPA 719 will constitute an abuse of discretion where the facts are disputed, where conflicting inferences may be drawn therefrom, or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy" (Matter of Kaufman, 137 A.D.3d 1034, 1035 [2d Dept 2016], lv denied 28 N.Y.3d 908 [2016]; see Matter of Duke, 87 N.Y.2d at 472-473). To that end, "[c]ourts exercise the power of removal sparingly, and only upon a clear showing of serious misconduct that endangers the safety of the estate; not every breach of fiduciary duty will warrant removal of an executor" (Matter of Petrocelli, 307 A.D.2d 358, 359 [2d Dept 2003]; see Matter of Duke, 87 N.Y.2d at 473). In short, removal should normally be preceded by a hearing (see Matter of Duke, 87 N.Y.2d at 472-473).
Here, the Executor submits an affidavit in opposition contesting his removal, asserting that he has acted in a reasonable and diligent manner with respect to the estate's assets, that he has preserved rather than wasted the assets, that he has maintained all real property "at a considerable savings to the [e]state," and that he has taken affirmative steps to list and sell all of the real properties with "two real estate brokers . . . in a booming real estate market." The Executor adds that "multiple showings" of the properties are scheduled and the brokers expect receiving immediate bids.
The Executor also suggests that Gregory Wunner has alternate remedies available to him such as modifying the letters testamentary, imposing a bond, imposing requirements that the Executor not make any distribution from estate assets without further court order, or to provide written notice to the beneficiaries of any action(s) he intends to take concerning estate assets.
Moreover, the Executor states in his affidavit that the fair market values of the properties has "likely increased" since 2019 based on his conversations with real estate brokers familiar with the real properties; that he caused maintenance and repair to be performed on the real properties "with the intention of enhancing their value"; that any delays associated with administering the estate in a quicker fashion were the fault of prior counsel; that he has no objection to granting petitioner access to decedent's former home in order to determine the distribution of decedent's personal items; that he intends to make the $50,000 bequests to his nieces after "all assets have been marshalled and liquidated" and will do so immediately once all monetary funds are deposited into the estate checking account; and that he does not possess any trust accounts established by the decedent but will further research this matter by reviewing all documents concerning the decedent.
The Executor also tries to justify his reasons for any potential delay: the impact of the pandemic caused by the novel coronavirus (COVID-19) and due to undergoing open heart surgery in March 2020. Despite these impediments that are now behind him, the Executor states that he now realizes that there is a "heightened degree of diligence" required on his part and, as such, he retained new counsel to assist in expediting the administration of the estate.
In response, Gregory Wunner submits an affidavit in reply, wherein he asserts that the Executor's significant delay in listing the real properties for sale has financially harmed the estate.
In this regard, Gregory Wunner states that real estate market boom caused by COVID-19 has dissipated and that real estate sales and the fair market value of properties are declining - with real estate steadily shifting from a seller's market to a buyer's market. According to Gregory Wunner, the Executor "missed the 'seller's market'" and has exhibited total indifference and utter disregard for the estate.
Also in his affidavit, Gregory Wunner states that the Executor has repeatedly refused to allow him access inside decedent's former home so he can view and inventory all assets therein. At the same time, Gregory Wunner avers that the Executor has not prohibited their sister from entering decedent's former home. Gregory Wunner believes that the Executor has denied him such access because he does not want him to observe and further document the alleged "deplorable condition" of decedent's former home. Gregory Wunner avers that he has seen photographs and "other pieces of Wunner family history" being left outside the house along with trash and debris.
Contrary to Gregory Wunner's assertions and contentions, the factual allegations in this case are sharply disputed by the parties and give rise to conflicting inferences regarding the Executor's complained-of conduct and shortcomings (see Matter of Mercer, 119 A.D.3d 689, 692 [2d Dept 2014]) - which arguably may have harmed the estate (cf. Matter of Petrocelli, 307 A.D.2d at 360). As stated above, "SCPA 711 requires a showing of improvident management of assets, misconduct in the execution of duties[,] or unfitness for office before removal is justified" (Matter of Farber, 98 A.D.2d 720, 720 [2d Dept 1983]). The burden is on the party seeking to remove the fiduciary (see Matter of Krom, 86 A.D.2d 689, 690 [3d Dept 1982], appeal dismissed 56 N.Y.2d 505 [1982]).
While Gregory Wunner may have raised issues that arguably warrant removing the Executor, the record is devoid of undisputed facts for the Court to make such a summary determination without conducting a hearing. Indeed, the motion papers and the parties' conflicting affidavits reveal disputed allegations where conflicting inferences may be drawn therefrom and the Executor has presented mitigating facts that, if established, do not rise to the level of serious misconduct which necessitates his expedited removal at this time (see Matter of Heino, 186 A.D.3d 1216, 1218 [2d Dept 2020]; Matter of Kaufman, 137 A.D.3d at 1035; Matter of Estate of Venner, 235 A.D.2d 805, 806-807 [3d Dept 1997]; compare Matter of Shambo, 169 A.D.3d 1201, 1206 [3d Dept 2019]; Matter of Witherill, 37 A.D.3d 879, 881-882 [3d Dept 2007]). Furthermore, it is unclear at this juncture what impact, if any, the three-year plus delay had on the value of the decedent's estate and whether the Executor engaged in conduct or omissions that justify removal. Nor can it be said that the executor's in-court conduct mandates instant removal (see Matter of Kaufman, 137 A.D.3d at 1035).
Accordingly, the Court exercises its discretion in declining to remove the Executor as the estate's fiduciary, pending the outcome of the hearing (see e.g. Matter of Levitin, 50 Misc.3d 1226[A], *3-5 [Sur Ct, Westchester County 2016]; Matter of Reimels, 20 Misc.3d 1118[A], *2-3 [Sur Ct, Nassau County 2008]; see generally SCPA 713). Because the executor has already listed the real properties for sale and there is no clear evidence of imminent harm to the estate, the Court will defer the issue of the executor's removal until after the hearing is concluded (see Matter of Reimels, 20 Misc.3d 1118[A], *3).
Likewise, the Court also declines to temporarily suspend the Executor's letters testamentary prior to holding the evidentiary hearing since such relief would be contrary to the myriad of outstanding issues raised by the parties (see Matter of Mercer, 119 A.D.3d at 692; Matter of Collins, 36 A.D.3d 1191, 1193 [3d Dept 2007]; see also SCPA 719 [10]). The decision whether to suspend or remove an executor lies within the discretion of the Surrogate (see SCPA 713; Matter of King, 147 A.D.3d 1286, 1287 [3d Dept 2017]; Matter of Greenway, 241 A.D.2d 735, 736 [3d Dept 1997]; see also Matter of Stile, 45 Misc.3d 1209(A) [Sur Ct, Nassau County 2014]; Matter of Romano, 8 Misc.3d 1010[A], *21 [Sur Ct, Nassau County 2005]). Since the Executor represents that the real properties have been listed for sale, letters testamentary are needed for him to legally effectuate prospective sales and to complete any transactions related thereto. Therefore, the Court denies Gregory Wunner's request to temporarily suspend the letters testamentary so that the Executor is duly able to continue administering the estate.
To the extent Gregory Wunner seeks an order for the Executor to file an intermediate accounting, that request for interim relief is denied insomuch it was not squarely addressed in his motion and there are no allegations that the Executor mishandled estate assets. The Court will entertain arguments regarding an intermediate accounting at the time of the hearing should Gregory Wunner make the appropriate application.
Counsel for Gregory Wunner made this request for interim relief at oral argument. That specific relief was not requested in the order to show cause but was summarily included in the wherefore clause of the petition. Notwithstanding, Gregory Wunner did not squarely address this issue in his papers.
Lastly, Gregory Wunner's request for counsel fees is denied. It is "incumbent upon [counsel] to provide the court with sufficient information upon which to determine the reasonable value of the legal services rendered" (NYCTL 1996-1 Trust v Stavrinos Realty Corp., 113 A.D.3d 602, 604 [2d Dept 2014]; see Citicorp Trust Bank, FSB v Vidaurre, 155 A.D.3d 934, 935 [2d Dept 2017]). Here, Gregory Wunner failed to address his application for counsel fees, nor did he submit anything in support thereof. Simply put, his counsel has not provided any information to the Court upon which to determine that he is entitled to reasonable counsel fees for the legal services rendered (compare e.g. People's United Bank v Patio Gardens III, LLC, 143 A.D.3d 689, 691 [2d Dept 2016]; Vigo v 501 Second St. Holding Corp., 121 A.D.3d 778, 780 [2d Dept 2014]).
The Court has considered the additional contention of the parties not specifically addressed herein. To the extent any relief requested by the parties was not specifically addressed, it is denied. Accordingly, it is hereby:
ORDERED that the motion (Mot. Seq. 1) of GREGORY WUNNER for an order, pursuant to SCPA 711 (2) and (8), to remove MITCHELL E. WUNNER as the Executor of Dolores A. Wunner's estate and to substitute and appoint GREGORY WUNNER as the executor of said estate, is denied in part, as is more fully set forth herein, pending the evidentiary hearing pursuant to SCPA 713; and it is further
ORDERED that those branches of GREGORY WUNNER'S motion for an order to turn over all estate assets to him; denying or reducing the Executor's commissions; surcharging the Executor for wasting estate property; and awarding GREGORY WUNNER reasonable counsel fees for commencing this miscellaneous proceeding, are denied; and it is further
ORDERED that the Court shall conduct an evidentiary hearing in this matter; and it is further ORDERED that the petition of GREGORY WUNNER shall be held in abeyance pending the Court's final determination after the hearing; and it is further ORDERED that the Executor, Mitchell E. Wunner, shall provide petitioner Gregory Wunner access inside the premises commonly known as 248 Foggintown Road, Brewster, NY 10509 in order to take inventory and to assess the condition of said real property; and it is further
ORDERED that counsel shall appear for a prehearing conference on August 20,2021 at 3:00 p.m. to be conducted virtually via Microsoft Teams with respect to scheduling the hearing and for further proceedings in this case.
The foregoing constitutes the decision and order of this Court.