Opinion
No. 2019-171/a
06-09-2023
In the Matter of Judicially Settling the Final Account of PAUL ANDREW WOOD, as Ancillary Executor of the Estate of: KATHLEEN M. WOOD a/k/a KATHLEEN MOFFAT WOOD, Deceased.
Daniels Porco & Lusardi, LLP Attorneys for Petitioner Paul A. Wood Attn: Cristen G. M. Rescigno, Esq. Michael Karlsson, P.C. Attorneys for Respondent-Objectant Jeanne McMurray Michael B. Karlsonn II, Esq.
Unpublished Opinion
Daniels Porco & Lusardi, LLP Attorneys for Petitioner Paul A. Wood Attn: Cristen G. M. Rescigno, Esq.
Michael Karlsson, P.C. Attorneys for Respondent-Objectant Jeanne McMurray Michael B. Karlsonn II, Esq.
DECISION & ORDER
HON. ANTHONY R. MOLE Judge.
The following papers were read and considered in accordance with CPLR 2219 (a) and 22 NYCRR 207.7 on the combined motion (Mot. Seq. No. 1) by petitioner PAUL ANDREW WOOD, made pursuant to CPLR 3211 (a) (7), to dismiss the verified objections of respondent-objectant JEANNE McMURRAY; and also, made pursuant to 22 NYCRR 130-1.1, for attorneys fees and costs and/or imposing sanctions against respondent-objectant JEANNE McMURRAY:
Papers:
• Notice of Motion, Memorandum of Law in Support, Affirmation in Support, Affidavit of Petitioner Paul A. Wood, Exhibits A-I; and Affirmation of Legal Services
• Memorandum of Law in Opposition; Affirmation in Opposition, Exhibits A-B; and Objectant's Affidavit in Opposition
• Reply Memorandum of Law in Support; Reply Affirmation; Petitioner's Reply Affidavit, and Exhibits 1-3;
In this contested proceeding to judicially settle the final account of Paul A. Wood (petitioner), as the ancillary executor of the estate of Kathleen M. Wood (decedent), petitioner moves for an order, pursuant to CPLR 3211, to dismiss the objections of Jeanne McMurray (the objectant) - who opposes the motion. Upon review of the aforesaid papers, this Court finds and determines as follows:
I. Factual Background & Procedural History
Some background is in order to analyze the issues raised in this motion. Decedent was survived by three children: petitioner, the objectant, and Lawrence A. Wood (herein referred to as the brother).
The parties' motion papers refer to the brother as "Larry."
In 1964, decedent, along with her husband, acquired the real property known as 14 Louis Place in the Village of Brewster (herein interchangeably referred to as the subject premises). She resided there for several decades with her spouse who died in 2008.
In 2009, roughly one year after her spouse had died, decedent moved from the subject premises to Pennsylvania with petitioner and his wife. About six months after decedent had moved out, the brother began residing at the subject premises at decedent's request because the house was vacant. While living there, the brother paid expenses concerning the subject premises, including real property taxes, maintenance, utilities, and expenditures for noncapital repairs.
In 2010, decedent moved with petitioner and his wife to Texas. While a resident of that state, decedent made a will nominating petitioner as the executor of her estate. She died as a Texas domiciliary on March 1, 2013. By all accounts, the brother had, meanwhile, been residing in the subject premises; and he ultimately moved out from there in or about August 2018.
Decedent's will was admitted into probate in Texas in February 2019. And accordingly, petitioner was issued letters testamentary by the probate Court of Williamson County in Texas. Because the subject premises here in Putnam County was left as part of decedent's residuary estate, petitioner applied for and was granted ancillary letters testamentary in August 2019 by this Court (Hon. James T. Rooney, Surrogate [retired]).
At the heart of the parties' dispute here is the subject premises, which, notably, the executor sold to a bonafide purchaser in January 2021 for $200,000. The parties and the brother attempted to negotiate the distribution of the net proceeds from the sale of the subject premises, but they were unable to reach a mutual resolution. The foregoing, according to petitioner, resulted in him voluntarily commencing this proceeding for judicial settlement of the final account so that the sale proceeds of the subject premises can be divided between the three of them.
In March 2022, petitioner, through counsel, filed a petition to judicially settle the final account of the ancillary estate from the period from August 23, 2019, through March 9, 2022. The petition, among other things, reflects that the gross value of the estate is $181,966.35, and petitioner seeks commissions in the sum of $8,278.65 for serving as the ancillary executor. After certain reimbursements and expenses incurred on behalf of the estate, the accounting reflects a proposed distribution of $102,017.24 to be equally split between the parties.
The brother filed a waiver on March 31, 2022, wherein he consents to judicially settle the final account. The objectant did not; and so, the Court issued a citation returnable for August 19, 2022. The objectant interposed her verified objections to the final accounting in November 2022,asserting an objection to most of the schedules attached to petitioner's accounting. Nearly all of the objections relate to decedent's real property in Putnam County. The objectant also seeks to impose a surcharge upon petitioner for his failure to take control of and preserve the subject real property as the sole asset of the estate and allegedly letting it fall into despair while the brother resided there.
The verified objections were filed November 18, 2022.
The specific objections are not numbered, but are divided into sections relative to each of the various schedules annexed to the petition.
While the parties initially intended for the exchange of disclosure, and an informal discovery schedule was set in that regard, counsel have represented that the parties forwent discovery in hopes of trying to settle this proceeding. That was to no avail. In March 2023, petitioner filed a motion to dismiss the objections. The objectant filed opposition papers in April 2023. Petitioner, in turn, filed reply papers shortly thereafter. The motion is thus fully submitted and shall be accordingly disposed of as follows.
II. Parties' Contentions
Preliminarily, although petitioner's notice of motion does not specify on its face under which subdivision of CPLR 3211 that it is predicated on, counsel's memorandum of law cites CPLR 3211 (a) (7). Thus, the moving papers reflect that his motion is being made pursuant to CPLR 3211 (a) (7) to dismiss the verified objections for failure to state a cause of action.
Petitioner's main contention in support of dismissal is that the objections, even if true and afforded the benefit of every possible inference, do not set forth a claim upon which relief can be granted to the objectant. In this regard, petitioner argues that title to the subject premises vested in the parties and the brother, as tenants in common, upon the date of decedent's death; thus, each of them as cotenants had a one-third interest in the subject premises. Petitioner claims that the brother had the right to live there rent-free at decedent's request prior to her death, and that he also had a right to occupy and use it by continuing to reside there without paying rent after she passed away. This is a result of there being no agreement that precluded the brother from doing so. Petitioner adds that the brother paid all real property taxes and expenses for the subject premises during the time he lived there; that after the brother moved out from the premises in 2018, he and the brother jointly paid such taxes and expenses for the-then vacant premises until 2021, prompting the reimbursement requests sought in the accounting.
Petitioner further asserts that he had no obligation to promptly take possession of the subject premises and institute an ancillary probate, pointing out that the decedent's will could not be found for some time and that the parties and the brother could not reach a final agreement about what to do with the subject premises after the brother had moved out. Since they were at an impasse, petitioner maintains that he obtained ancillary letters as the estate fiduciary for the sole purpose of taking possession of the subject premises, selling it, and for distribution of the sale proceeds to each of them.
Petitioner also contends that any objections which do not strictly concern the subject premises must be dismissed as a matter of law, inasmuch as this matter stems from an ancillary probate proceeding of decedent's prior interest in the subject property and this case is wholly unrelated to any other assets of decedent. Petitioner thus urges that the primary probate of decedent's estate is within the subject matter jurisdiction of the Texas probate court, including any personal property, retirement account, etc.
In addition, petitioner argues that, as the executor, he is entitled to mandatory commissions pursuant to SCPA 2307 (1). He posits that the objections are devoid of allegations that he engaged in misconduct or otherwise breached his fiduciary duties to the estate, so as to surcharge him and deny commissions.
In opposition, the objectant faults petitioner's six-year delay since decedent's death in 2013 in pursuing his appointment as the ancillary executor to take possession of the subject premises, failure to collect rents therefrom, and neglecting to preserve and protect the real property from falling into despair and diminishing in total value. The objectant asserts that petitioner unexplainably permitted the brother to damage the property during his period of occupancy, that the brother allegedly failed to make ordinary repairs, and caused additional extraordinary repairs. The objectant therefore posits that the brother is liable to her and petitioner for his use and occupancy of the property from when decedent died until he vacated the premises.
The objectant additionally claims that petitioner is not entitled to commissions due to his extensive delay in petitioning to be appointed the ancillary executor, thereby breaching his fiduciary duty to act with prudence and expediency and he should be surcharged. The objectant asserts that based on her understanding, she believed that petitioner had "constructive possession" of the subject premises since 2013 because he held himself out to be the executor and allegedly acted in such a capacity prior to his official appointment. The Court has carefully reviewed the motion papers and considered the arguments asserted therein, as well as the record of this estate.
III. Discussion and Analysis
a. Petitioner's Motion to Dismiss the Objections
In support of his motion to dismiss the objections, petitioner submits, among other things, the petition as the accounting party; the supporting accounting with the requisite schedules (see generally 22 NYCRR 207.40 [Uniform Rules for Surrogate's Court]); his affidavits in support of dismissal; a list of proposed repairs to the subject premises created by the objectant and her husband in 2019 totaling $139,462.82; a written counterproposal submitted in response by petitioner of potential repairs to the property aggregating to $25,969.40; and an email correspondence in October 2019 from the objectant's prior attorney who suggests therein that the best solution, at such time, was to transfer title of the subject premises to the objectant "as is," inclusive of certain appliances.
In his initial affidavit in support of dismissal, petitioner states, among other things, that after decedent passed away in 2008, she moved with him and his wife to Pennsylvania in 2009, and approximately six months after, decedent herself "asked" the brother to "move into the [subject premises] since it was vacant." Petitioner represents that the brother paid for all "expenses such as real property taxes, fuel oil, electricity, maintenance, and non[]capital repairs" after he had moved in to the subject premises, and that he continued to do so "during the time [he] resided" there until August 2018. Petitioner states that the parties and their brother were at an impasse then as to how to handle the real property, whether they should sell it, and the price they should list it for sale.
Petitioner explains in his affidavit that he commenced probate proceedings in Texas for decedent's estate around February 2019 because she was domiciled there and, subsequently, he filed an ancillary probate proceeding in this Court in order to "take possession" of the subject premises for purposes of accomplishing its "distribution." Petitioner also states that he "engaged a real estate broker" and heeded advice about "marketing the [p]roperty for sale." He explains that several longstanding issues with the subject premises - which had been mostly present during his parents' ownership of it - had to be addressed in order to make the subject premises more marketable for sale, including, "without limitation," removing a buried fuel oil tank and asbestos tile. Petitioner maintains that the subject premises was "in general despair" prior to decedent's death because his parents had made "very few updates to the home . . . as they got older." Petitioner adds that he "arranged for various remediations and repairs" to ready and have the subject premises sold, noting that "all of the expenses for which reimbursement is sought occurred after [the brother] vacated" from the house. Lastly, petitioner represents that he tried to resolve the matter with the objectant after he filed this account, but after "extensive attempts," they were unable to come to a mutual agreement.
In contesting the motion to dismiss, the objectant only submits her objections and an affidavit in opposition. In her affidavit, the objectant makes several noteworthy admissions. She concedes that she "was aware" that decedent left a will nominating petitioner as the executor of her estate and, also, that decedent had given the brother permission to reside at the subject premises, but he lacked permission to "damage" it or let it "fall into despair while living there." The objectant also acknowledges that she understood that the subject premises could not be sold "until after" decedent's will was admitted into ancillary probate and petitioner was officially appointed as the ancillary executor by a Surrogate of this Court (emphasis added).
Among other things, the objectant states in her affidavit that she understood petitioner to be in charge of the estate assets as the fiduciary, to safeguard them, promptly administer the estate without undue delay, and distribute the respective shares to the three beneficiaries, including her.
The objectant avers that petitioner "gave the impression" that he was "in charge" based on their "communications" following decedent's death and that he "reinforced" this to her by telling her that he was responsible for all decisions relating to the subject premises, including marketing the property for sale, making repairs and determining the appropriate costs and contractor to perform the work, and anyone who would be "granted access to the premises." The objectant represents in her affidavit she made "numerous inquiries" with petitioner to initiate the "process of . . . seeking appointment as executor in an effort to move things along," but he waited more than six years before acting upon it. The Court notes that the objectant does not substantiate her allegations in this regard since she did not annex any direct communications between the parties in her motion papers.
The objectant also states that petitioner instructed her and their brother to send "all bills" to him insofar as they concerned decedent and advised them that he would "handle them"; and that petitioner had a key to the premises, but he did not provide her with one until October 2018 when their brother sent one to her. The objectant states that she was first allowed to visit the premises in October 2018 when the brother sent her the key and that it was the first time she saw "the state of despair" caused by the brother, which she feels was allowed by petitioner.
Further, the objectant avers that petitioner served as the executor "remotely" from his residence in Texas and rarely visited the subject premises during his term as ancillary executor. She avers in her affidavit that even after his appointment, petitioner was an "absentee executor" inasmuch as he did not visit the premises until about July 2019. The Court notes that Surrogate Rooney granted him ancillary letters testamentary in August 2019, the month after he supposedly visited the property per the objectant's averment.
The objectant believes that she was excluded from using the subject premises because petitioner allowed their brother to reside there from 2013 until 2018. She states that the brother's exclusive use and occupancy interfered with her right to use and enjoy it. She asserts that petitioner permitted as much by failing to charge their brother rent after decedent's death, selling the property in an overly belated manner, and allowing their brother to cause damage. According to the objectant, significant costs were needed to repair the real property for sale, thus impairing its marketability and reducing the sale proceeds. The objectant avers that petitioner failed to obtain insurance coverage for the subject premises and neglected to take action to effectuate the transfer of the insurance policy from decedent to the estate or inform the carrier that the premises was vacant.
Furthermore, the objectant apparently makes several claims in her affidavit that concern only the brother. She emphasizes that the brother paid only "some property taxes and [expenses for] ordinary repairs" but not all (emphasis omitted). She claims that the brother "should bear the sole responsibility" for his "conduct" which "increased the amount of ordinary repairs" to the subject premises, and petitioner is now claiming those as administrative expenses as part of this accounting. She reiterates that the brother "destroyed" the subject premises, diminished its value, and did not pay rent while living there.
The objectant posits in her affidavit that petitioner has "damaged [her] as a beneficiary" inasmuch as he failed to pursue claims against the brother since the latter purportedly damaged the subject premises, which necessitated additional expenses to repair and remediate the property. The objectant avers that she began soliciting repair estimates for the real property in July 2019, shared those with petitioner, but he "rejected" almost all of them and chose on his accord which repair projects to complete and which contractor to hire, thereby "excluding [her] from the process." She avers that the locks to the subject premises were changed two months after petitioner was issued ancillary letters, thus further depriving her of meaningful access.
The objectant presses that petitioner should not be entitled to commissions based on his extensive delay in being appointed the fiduciary and his inaction in doing so allowed their brother to further damage the property and result in its depreciation. She believes that it is "unjust and inequitable" for petitioner to be awarded any commissions and claims, instead, he should be surcharged for breaching his fiduciary duties.
In reply, petitioner advances that the objectant is mostly raising claims against their brother. Petitioner asserts that the objectant's failure to understand her legal rights is irrelevant to this accounting. Petitioner also asserts that the objectant fails to realize or explain why the brother, as a tenant in common, would have to pay her rent, or why petitioner is now responsible for their brother's alleged conduct in purportedly damaging the real property.
Petitioner submits an affidavit in reply maintaining that the primary delay in the probate of decedent's will was because it had been lost and was not found; consequently, the parties had to engage counsel for legal assistance. Petitioner further states that the objectant "never contributed to any bills, maintenance, or expenses" associated with the subject premises (emphasis added). Petitioner adds that she "never objected" to their brother residing at the subject premises until about October 2019 after he had since long moved out. Petitioner also states that the objectant was "never excluded" from the subject premises, that she brought her household trash there until the property was sold, and she did so "on a weekly basis so . . . the local garbage would dispose of it."
b. Applicable Law
We begin with the fundamental principle that accountability is an essential element of all fiduciary relationships (see Matter of Malasky, 290 A.D.2d 631, 632 [3d Dept 2002]; Bauer v Bauernschmidt, 187 A.D.2d 477, 478 [2d Dept 1992]; see generally EPTL 11-1.7). "It is well established that a fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect. In this respect, a fiduciary acting on behalf of an estate is required to employ such diligence and prudence to the care and management of the estate assets and affairs as would prudent persons of discretion and intelligence in their own like affairs. This requires that the fiduciary utilize good business judgment" (Matter of Blaine, 209 A.D.3d 1124, 1126 [3d Dept 2022] [internal brackets, quotation marks, and citations omitted]; see Matter of Carbone, 101 A.D.3d 866, 868 [2d Dept 2012]).
"A fiduciary, as an executor or trustee, is obligated to account for his or her decisions and actions in administering an estate or trust" (Matter of Spacek, 155 A.D.3d 747, 748 [2d Dept 2017] [internal brackets omitted]; accord Matter of Lee, 153 A.D.3d 831, 832 [2d Dept 2017]). Moreover, it is incumbent upon a fiduciary to maintain "clear and accurate records," absent which all presumptions and all doubts are to be resolved against him or her (Matter of Mink, 91 A.D.3d 1061, 1063-1064 [3d Dept 2011]; see Matter of Carbone, 101 A.D.3d at 869). The burden of proof as to the propriety of all claims and expenses is upon the accounting party (see Matter of Shulsky, 34 A.D.2d 545, 547 [2d Dept 1970]).
"Under article 22 of the Surrogate's Court Procedure Act, fiduciaries such as executors . . . have an obligation to account for their actions. A fiduciary may voluntarily proceed to obtain formal judicial settlement of an account under SCPA 2208. Pursuant to SCPA 2208, a fiduciary may present to the court his [or her] account and a petition praying that his [or her] account be judicially settled and that all necessary and proper parties be required to show cause why such settlement should not be had" (Matter of Holterbosch, ___ A.D.3d ___, ___ 2023 NY Slip Op 02517, *1 [2d Dept 2023] [internal quotation marks and citation omitted]). With these guiding principles in mind, the Court turns now to the merits of petitioner's motion to dismiss the objections.
c. The Objectant's Purported Claims
Prefatorily, the Court is compelled to address some preliminary matters warranted by the parties' legal contentions prior to addressing the validity of petitioner's underlying accounting. As petitioner aptly points out, he, as the ancillary executor, had no power to manage or dispose of the subject real property without approval of a surrogate, which is to be granted only "where such power is necessary for the purposes set forth in SCPA 1902" (EPTL 11-1.1 [b] [5] [E]). To that point, EPTL 11-1.3 provides, in relevant part, that "[a]n executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary . . . are granted . . . nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it." Relevant here also, SCPA 1902 (6) provides, in pertinent part, that "real property may be disposed of . . . [f]or the payment and distribution of their respective shares to the persons entitled thereto" (see generally Matter of Marino, 36 Misc.3d 1215[A], *4 [Sur Ct, Bronx County 2012]). In this case, there is no disagreement that the primary purpose of petitioning for the ancillary probate was to sell the subject premises in order collect the sale proceeds for distribution and thereafter, complete payment to decedent's beneficiaries: the parties and their brother, Lawrence.
EPTL 11-1.1 (b) (5) (A) provides that "[i]n the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary, or in a subsequent order or decree, or in the will, deed or other instrument, every fiduciary is authorized . . . [w]ith respect to any property or any estate therein owned by an estate or trust, except where such property or any estate therein is specifically disposed of . . . [t]o take possession of, collect the rents from and manage the same" (see Matter of Seviroli, 31 A.D.3d 452, 455 [2d Dept 2006]). "[M]erely because a fiduciary . . . is authorized to take possession of real property" does not mean that the statute is to be strictly "read to compel a fiduciary to take possession in every case where real property is devised as part of a residuary estate" (id. [internal quotation marks omitted]).
Here, the subject real property was not specifically disposed of in decedent's will. It was left as part of decedent's residuary estate. There is no dispute that a sale of the subject premises was necessary for administration of decedent's ancillary estate. Such has already been accomplished (see generally Matter of Paccione, 2021 WL 4025317, *1 [Sup Ct, Kings County 2021]).
The objectant never pursued any potential claims she may have had from 2013 until now, including before the subject premises was sold in 2021. Other than specifying uncorroborated figures in her objections, the objectant failed to explain how the fair market value of the subject premises decreased over time since the condition had allegedly deteriorated. The papers further reflect that she sought a windfall in October 2019 by requesting that petitioner transfer the entire property to her as what she perceived to be the "most equitable solution." The subject premises was sold more than two years ago to a disinterested third party as a bonafide purchaser for value, who bought the real property in good faith for valuable consideration based on an arms-length transaction (see generally Matter of Pati, 151 A.D.2d 1006, 1007 [4th Dept 1989]).
To the extent the objectant claims that petitioner should have charged and collected rent from their brother during the time he lived in the subject premises, that contention is without merit. "Generally, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator's death and not at the time of probate. However, the vesting of title is subject to the executor[']s[] duty to ensure that all debts and obligations of the estate are met" (72634552 Corp. v Okon, 189 A.D.3d 1317, 1318 [2d Dept 2020] [internal quotation marks, brackets, and citations omitted] [emphasis added]; see Bank of N.Y. Mellon v Rose, 210 A.D.3d 846, 847 [2d Dept 2022]). "Unless otherwise directed by the will, an executor takes no title to the property of the testator since title vests in the devisees subject to the necessities of administration of the estate" (Matter of Seviroli, 31 A.D.3d at 454). "Where a will directs an executor to divide the residue into equal parts, title does not vest in the executor, nor does it preclude the vesting of absolute title in the devisee. The executor's discretionary power to sell the property for purposes of distribution does not cause title to the real property to rest in the executor" (id. at 454-455; see DiSanto v Wellcraft Mar. Corp., 149 A.D.2d 560, 562 [2d Dept 1989], lv denied 75 N.Y.2d 703 [1990]).
Applicable here, "[a] tenant in common 'has the right to take and occupy the whole of the premises and preserve them from waste or injury, so long as he or she does not interfere with the right of the other tenants to also occupy the premises'" (McIntosh v McIntosh, 58 A.D.3d 814, 814 [2d Dept 2009], quoting Jemzura v Jemzura, 36 N.Y.2d 496, 503 [1975]). "Mere occupancy alone by one of the tenants does not make that tenant liable to the other tenant for use and occupancy absent an agreement to that effect or an ouster" (McIntosh v McIntosh, 58 A.D.3d at 814).
Based upon the foregoing tenets of law, a one-third interest in the subject real property vested in the objectant as a residuary beneficiary when her mother died in 2013. So, when decedent passed away, the parties and their brother owned the subject premises as cotenants in common, each having a one-third interest. Petitioner did not have a duty to clear any debts and obligations of the estate in connection with the subject real property since the record reflects that it was not encumbered by, for example, a mortgage, lien(s), or some other title defects (see generally Janian v Barnes, 294 A.D.2d 787, 789 [3d Dept 2002]; Field v Concord Kennedy Ltd. Partnership, 176 A.D.2d 855, 856 [2d Dept 1991]). What's more, the fact that the brother, as a cotenant in common, lived in the subject premises for several years did not make him liable to the objectant for his use and occupancy, insomuch as the record does not reflect that there was an agreement made to the contrary or there was an ouster. Nor does the objectant claim that the brother ousted or otherwise excluded her from exercising her rights with respect to the subject property. Petitioner, as the executor, should be afforded some discretion in manner in dealing with the subject premises, including charging rent for the brother's occupancy as a tenant in common (see Matter of Owens, 36 Misc.2d 1031, 1039 [Sur Ct, Onondaga County 1962]). Here, neither petitioner nor the objectant demanded any rent from the brother for living there.
In any event, the Court underscores that the objectant did not avail herself of any viable causes of action she may have had against the brother or petitioner. She never brought any claims or instituted proceedings against petitioner, or collectively their brother, for partition, waste, ouster, ejectment, or to enforce the existence of any agreement that required either of them to pay rent, use, and/or occupy the subject premises (see e.g. Rozenberg v Perlstein, 200 A.D.3d 915, 920 [2d Dept 2021]; Perretta v Perretta, 143 A.D.3d 878, 879-880 [2d Dept 2016]; Cooney v Shepard, 118 A.D.3d 1376, 1377-1378 [4th Dept 2014]; Corsa v Biernacki, 2 A.D.3d 388, 388-389 [2d Dept 2003]). Hence, the Court rejects the objectant's claim that petitioner or the brother are somehow liable to her based on the latter's use and occupancy of the premises prior to the ancillary proceedings commenced in this court. Indeed, "tenants in common have a quasi-trust or fiduciary relation with regard to the property they commonly hold" (Rozenberg v Perlstein, 200 A.D.3d at 921; see Misk v Moss, 41 A.D.3d 672, 673 [2d Dept 2007], lv dismissed 9 N.Y.3d 946 [2007], lv denied 10 N.Y.3d 704 [2008]).
The objectant's reliance on Matter of Skelly (284 A.D.2d 336 [2d Dept 2001]) is misguided. True, that "a nominated executor has the duty to preserve estate assets for the protection of those persons eventually entitled to receive them" (Matter of Marsh, 106 A.D.3d 1009, 1011 [2d Dept 2013] [internal brackets, quotation marks, and citations omitted]). But Skelly involved a will that specifically directed the executor to "marshal all of the assets of the estate and, in the event administrative costs, taxes, and debts exceeded the funds of the estate, the real property . . . was to be sold and used to pay these expenses" (Matter of Skelly, 284 A.D.2d at 336). The real property at issue in Skelly was vandalized and damaged when the executor waited over one year after the decedent's death to commence probate proceedings (see id.). In affirming the Surrogate's decision to deny the executor summary judgment to settle the account, the Second Department found that the executor had a duty to ensure that all administrative expenses, funeral costs, and other debts were paid (see id. at 337). In stark contrast here, this matter concerns an ancillary probate consisting of a single real property, which had no outstanding debts or obligations, as is reflected in petitioner's accounting. The subject real property was not disposed of in decedent's will and was left as part of the residuary estate. Legal title to the property vested with the parties and their brother upon decedent's death. Title has since passed after the real property was sold in 2021. The objectant has adduced nothing to substantiate her allegations that the subject real property was damaged and had to be sold in a dilapidated condition. In sum, the Court finds the objectant's reliance upon Skelly to be misplaced and her argument, specious in nature, is unpersuasive.
d. Petitioner's Final Accounting
Turning now to the accounting, the objectant sets forth 40 combined specific objections to the final account concerning Schedule A ("Statement of Principal Received"), Schedule A-1 ("Statement of Increases, Sales, Liquidation, or Distribution"), Schedule A-2 ("Statement of All Income Collected"), Schedule B ("Statement of Decreases due to Sales, Liquidation, Collection, Distribution or Uncollectiblity"), Schedule C ("Statement of Funeral and Administration Expenses and Taxes Actually Paid"), and Schedule C-1 ("Statement of Unpaid Administration Expenses").
With respect to most of her objections numbered "1" through "40," the objectant assails petitioner's mismanagement of the ancillary estate based on his oversight and handling of the subject premises. With that said, the crux of the objectant's quarrel lies with the brother living in the subject premises for an extended period, starting from 2009 when decedent moved to about 2018, the brother having exclusive use and occupancy without paying rent, allowing two of his children to live there during various intervals, and storing his personal property there. The objectant surmises that the fair market value of rent ranged from $2,000 to $2,500 when the brother resided there for a period of approximately 94½ months, which, according to her, equates to roughly $189,000 to $236,250 in "uncollected rental income" that petitioner should have collected from the brother when he lived in the house. Hence, the objectant posits that she was "damaged" because no rental income was generated for the estate from the brother's use and occupancy, warranting a surcharge of petitioner. In addition, the objectant claims she was further damaged since the subject premises had an assessed value of $307,900 as of July 2013 and an appraised value of $240,000 in January 2019; but the fair market value significantly depreciated inasmuch as the brother "intentionally and/or negligently caused waste, despair, dilapidation, and deterioration" of the real property. The objectant asserts that this caused the need of repairs to be made to the premises which exceeded $150,000; and she avers that petitioner acknowledged to her around July of 2019 that the brother had "severely damaged [it] and he needed to surrender possession." She believes that petitioner should have filed claims against the brother and have mitigated further damage by "willfully refus[ing]" to eject the brother from the house. The objectant advances that petitioner should have sold the real property "as is" instead of soliciting contractors to repair the purported damage.
The objectant claims that neither petitioner nor the brother are entitled to reimbursement(s), inasmuch as no expenses should have been incurred with the exception of legal and filing fees in connection with this ancillary estate. She asserts that petitioner's substantial delay in both obtaining ancillary letters and selling the real property after several years necessitated additional expenses which could have been borne by the subsequent owner rather than the estate; so, petitioner ought to be surcharged due to his "detrimental inaction."
Furthermore, the objectant raises objections numbered "41 and "42" to petitioner's Schedule E ("Statement of Distributions Made") which is entirely blank. She claims that the brother "received an in-kind distribution" ranging from $189,000 to $236,250 for his possession, use, and occupancy of the subject premises for over 94½ months without having to pay rent during his residency. The objectant thus postulates that the same should be reflected in Schedule E because the brother has already received a distribution that far exceeds his beneficial interest, inasmuch as he was permitted to reside rent-free at the real property.
And last, the objectant asserts specific objections, numbered "45 and "46," to Schedule J ("Statement of Other Pertinent Facts, Cash Reconciliation, and Proposed Distribution"), which - after a proposed holdback of $2,800 - reflects a balance of $102,017.24 to be divided three ways between the parties and the brother for a distribution of $34,005.75 to each of them. The objectant claims, among other things, that this entire balance be distributed solely to her. She advances that she will continue to incur additional legal fees in contesting this accounting due to the purported acts and omissions of petitioner. This, according to her, is another reason for petitioner to be surcharged.
The fact that the objectant previously demanded that legal title of the subject premises be transferred to her and now wants the remainder of the money left in the ancillary estate is quite telling.
Application of settled law dictates that "[i]n a proceeding to settle a fiduciary's account, the party submitting the account has the burden of proving that he or she has fully accounted for all the assets of the estate. While the party submitting objections bears the burden 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 the evidence, that his or her account is accurate and complete' (Matter of Holterbosch, 2023 NY Slip Op 02517 at *1-2 [internal quotation marks and citation omitted]). "[T]his evidentiary burden does not change in the event the account is contested" (Matter of Doman, 110 A.D.3d 1073, 1074 [2d Dept 2013], lv denied 23 N.Y.3d 903 [2014]; see Matter of Cook, 177 A.D.3d 1214, 1215 [3d Dept 2019]).
"On a motion to dismiss pursuant to CPLR 3211 (a) (7), a court must afford the pleading a liberal construction, accept the facts alleged as true, accord the pleading the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Nevertheless, conclusory allegations-claims consisting of bare legal conclusions with no factual specificity-are insufficient to survive a motion to dismiss. In an accounting proceeding, the petitioner's accounting and the objections thereto constitute pleadings of the parties and, as such, must be sufficiently particular to give the court and parties notice of the claim, objection, or defense" (Matter of Holterbosch, 2023 NY Slip Op 02517 at *2 [internal quotation marks and citations omitted]). Stated succinctly, a motion to dismiss should be granted only if, upon viewing the allegations as true, the petitioner cannot establish a cause of action as a matter of law (see Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; Matter of Steinberg, 183 A.D.3d 1067, 1068 [3d Dept 2020]).
Here, the accounting appears, on its face, appears to be accurate and complete. The submissions include, inter alia, a closing statement for the sale of the subject premises in January 2021, which reflects that the subject real property sold for $200,000 with a net gain of $181,966.35. This was accurately reflected in petitioner's accounting. Petitioner also appends an itemized list of expenses he paid on behalf of the estate from October 2018 to January 2021 totaling $47,746.57, which include monthly maintenance fees, insurance, property taxes, lawn care, utility expenses for electricity, fuel, and the boiler, as well as legal fees, and remediation costs equaling $7,334.70. Additionally, petitioner attaches an itemized list of expenses that the brother paid on behalf of the estate from October 2020 to January 2021 totaling $2,521.95 which consisted of services for cleanup and plumbing associated with the subject premises. The objectant does not dispute that the expenses listed therein were associated with the sale of the subject premises, and the Court finds that they are properly chargeable to the estate (see Matter of Katz, 55 A.D.3d 836, 836-837 [2d Dept 2008]).
Moreover, "absent an ouster, tenants-in-common equally bear the costs incurred in maintaining the property" (Klein v Dooley, 120 A.D.3d 1306, 1307 [2d Dept 2014]). In this regard, "[i]t is well settled that a tenant in common is entitled to be reimbursed for the share of the taxes paid by him [or her] for the benefit of other tenants in common. Additionally, a tenant in common is entitled to be reimbursed for money expended in maintaining, repairing[,] and improving the property, if such maintenance, repairs, and improvements were undertaken in good faith and were necessary to protect or preserve the property" (Cooney v Shepard, 118 A.D.3d at 1377-1378). As has been accounted by him here, petitioner is entitled to be reimbursed for payments and expenses that he made for property taxes, maintenance, insurance, and/or various repairs to the subject premises in order to sell it (see id.; McIntosh v McIntosh, 58 A.D.3d at 814-815).
"In reviewing the accounting proceeding, it is settled that petitioner's accounting and the objections thereto constitute the pleadings of the parties, defining the issues to be tried. If left uncontested, the account stands proved pro confesso except in as far as it may be patently contrary to law" (Matter of Curtis, 16 A.D.3d 725, 726 [3d Dept 2005] [internal quotation marks and citations omitted]; accord Matter of Johnson, 166 A.D.3d 1435, 1436 [3d Dept 2018]). As set forth above, the burden is upon the objectant to show that the final accounting is inaccurate or incomplete since she is the party contesting it. She failed to do as much.
Insofar that the objectant's opposition papers do not squarely address the validity in the accounting of the principal received for sale of the real property (Schedule A), no increase on sales, liquidation, or distribution (Schedule A-1), and the fact that no rental income was collected during decedent's lifetime (Schedule A-2), those objections are hereby dismissed as a matter of law (numbered "1" to "15"). The objectant failed to demonstrate whether any proceeds from the sale of the property were unaccounted for (cf. Matter of Heino, 73 A.D.3d 1062, 1064 [2d Dept 2010]). She also does not have a viable objection with respect to any items of personal property, such as jewelry, an engagement ring, or an Egyptian head pendant, insomuch as those things are/were the subject of the primary probate in Texas - not this ancillary probate.
Furthermore, her opposition to the motion does not generate material factual issues about the accounting itself. She makes various allegations against petitioner that supposedly happened, leading up to when petitioner applied for ancillary letters testamentary in this Court. While the objectant faults petitioner for an inordinate delay in seeking appointment as ancillary executor, she largely blames their brother for the dilapidated condition of the premises before it was sold. The objectant does not adduce anything in opposition which evinces the condition of the subject premises at different periods, including when decedent resided there, when the brother moved in, or when the brother moved out. The motion papers merely reflect that the roof, chimney, and boiler were nonfunctional and there was a mold presence throughout the premises. Other than making bare assertions in that the brother allegedly damaged the property, the objectant does not proffer any photographs depicting if it was damaged/destroyed, what was damaged/destroyed, or the extent of the claimed damage/destruction.
The objectant heavily criticizes petitioner for inexplicable delays, neglecting to upkeep the premises, and allowing their brother to reside there for an extended period of time. Not to be overlooked is the fact that she did not object to petitioner's appointment as ancillary executor (see generally SCPA 1604; 1607; 1608), since she executed a waiver consenting to the ancillary probate (dated June 17, 2019 and filed July 26, 2019) - thus, memorializing that she had absolutely no objection to him serving as the estate fiduciary. Notably, the record reflects that she executed and filed the waiver with the assistance of counsel. In essence, the objectant's opposition to the final accounting hinges on claims she has against the brother, who is simply a beneficiary here.
The brother also executed a waiver consenting to petitioner being appointed the ancillary executor.
The Court finds that petitioner, in settling his final account, has met his burden of proving that he fully accounted for all the assets of the ancillary estate, which consisted of, among other things, the subject premises that was sold in 2021. Overall, he submitted complete documentation to support his accounting which has been done in accordance with Uniform Rules for Surrogate's Court (22 NYCRR) § 207.40, including, inter alia, the principal received from the sale of the subject premises reflecting a sum of $181,966.35; the administration expenses paid for real property taxes and legal fees totaling $18,601.94; unpaid expenses for fixing the property totaling $50,268.52 which includes itemized lists of expenses paid by petitioner and the brother on behalf of the estate; commissions that petitioner is seeking in the amount of $8,278.65 with a breakdown of the computations; a statement reflecting the balance of the ancillary estate to be $163,364.41 as of March 2022; and the closing statement from 2021 relative to the sale of the subject premises. The final account of petitioner, as the ancillary executor, appears to be accurate and complete. Petitioner has accounted for expenses incurred in updating and preparing the ancillary estate's real property for sale which were incurred in good faith (see Matter of Pavlyak, 139 A.D.3d 1338, 1339-1340 [4th Dept 2016]).
The Court further finds that the objectant failed to satisfy her burden of proffering evidence demonstrating that the underlying account is either inaccurate, incomplete, or otherwise deficient. Other than offering her own self-serving affidavit, the objectant submitted nothing to support her allegations and theories. Her affidavit is the only source for her purported claims, relies on some inadmissible evidence, and contains several allegations that are belied by the record and disproven. The objectant's affidavit is insufficient to warrant an evidentiary hearing and her objections do not deny a material fact contained in the petition (see Matter of Greenway, 241 A.D.2d 735, 736 [3d Dept 1997]). The objectant had an opportunity to pursue discovery but, instead, chose to forego it. The objectant does not dispute the actual figures set forth in petitioner's accounting. Nor does she assert that there are any missing assets from the ancillary estate or that petitioner erred during the administration process after he was granted letters. The undersigned rejects her claim that she should receive the entire remaining distribution.
The underlying objections do not point to concrete omissions, errors, or inconsistencies in the recording of estate income, administration expenses, the transfer of estate funds, or the sale of subject premises as the sole asset. The objectant did not demonstrate that petitioner failed to maintain clear and accurate records. The record, as well the objectant's opposition papers, are devoid of proof that petitioner wasted the estate asset, improperly omitted assets from his account, or engaged in impermissible self-dealing (compare e.g. Matter of Carbone, 101 A.D.3d at 869).
The objectant, therefore, failed to raise a triable issue of fact with respect to her objections claiming that the subject property was unaccounted for or undervalued (see Matter of Taylor, 79 A.D.3d 766, 766-767 [2d Dept 2010]). The real property was sold more than two years ago, and the parties no longer have legal title to it. As discussed in length here, the objectant failed to avail herself of legal recourse and implicitly assented to her brother living in the subject premises. And while she faults petitioner for his dilatory conduct, she failed to act on her behalf in pursuing any legal remedies she may have had.
Inasmuch as nearly all the objections do not squarely pertain to the petitioner's account based on a plain reading thereof, the undersigned is of the view that no factual issues have been presented by the objectant which necessitate the conducting of an evidentiary hearing for further exploration (see Matter of Schnare, 191 A.D.2d 859, 860-861 [3d Dept 1993], lv denied 82 N.Y.2d 653 [1993]; cf. Matter of Meister, 123 A.D.2d 264, 265-267 [1st Dept 1986]).
Given the foregoing, the Court thus concludes that the objectant failed to meet her burden to support a finding that petitioner's account was either inaccurate, incomplete, or otherwise should not be judicially settled (see CPLR 3211 [a] [7]; SCPA 2208; Matter of Holterbosch, 2023 NY Slip Op 02517 at *2; Matter of Taylor, 79 A.D.3d at 766-767; Matter of Rudin, 34 A.D.3d 371, 372 [1st Dept 2006]; see also Matter of Cameron, 165 Misc. 792, 794 [Sur Ct, New York County 1937], affd 253 AD 888 [1st Dept 1938]; cf. Matter of DiGiovanna, 148 A.D.3d 699, 700-701 [2d Dept 2017]; Matter of Gallagher, 81 A.D.3d 825, 825 [2d Dept 2011]).
e. Petitioner's Commissions
The objectant asserts specific objections, numbered "43" and "44," to petitioner's request for commissions in the sum of $8,278.65 that is made in Schedule I ("Statement of Computation of Commissions"). Raising many of the same allegations, the objectant claims that petitioner breached his fiduciary duties of "good faith or fair dealing" for which he should be denied commissions and imposed a surcharge.
SCPA 2307 governs the amount of commissions payable to fiduciaries, other than trustees, such as petitioner here as the ancillary executor. The rates of compensation are set forth in the statute (see SCPA 2307 [1] [a] - [e]).
With respect to the objections of petitioner's statutory commissions, SCPA 2307 (1) provides that, "[o]n the settlement of the account of any fiduciary . . . the court . . . must allow to the [fiduciary] . . . a commission." "Statutory commissions must be awarded in the absence of mathematical error in their computation or allegations of misconduct amounting to dereliction, complete indifference[,] or other comparable acts of misfeasance. In that regard, commissions may be disallowed when administration of an estate is delayed without justification" (Matter of Johnson, 166 A.D.3d 1432, 1433 [3d Dept 2018] [internal quotation marks and citation omitted]).
"An executor is entitled to receive a commission for all sums of money and all property received and paid out. Generally, commissions are not payable on real property unless the real property is sold or otherwise transferred" (Matter of Katz, 55 A.D.3d at 836). That said, "the payment of commissions is not a gratuity but compensation for services rendered in collecting and administering the assets of the estate and in distributing its net proceeds" (Matter of Spiak, 208 A.D.3d 1482, 1488 [3d Dept 2022] [internal quotation marks, brackets, and citation omitted]; see SCPA 2307 [1]; Matter of Rubinstein, 72 A.D.3d 692, 693-694 [2d Dept 2010] [affirming Surrogate's determination to disallow commissions where the executor delayed filing of a supplemental account for two years without justification]).
In the matter at hand, ARTICLE "VI. C." of decedent's will explicitly states that the executor, here petitioner, "shall be reimbursed for the reasonable costs and expenses incurred in connection with" his duties, and "shall be entitled to reasonable compensation for services rendered . . . in an amount not exceeding the customary and prevailing charges for services of a similar character." The objectant claims, among other things, that the delay in selling the estate asset, the subject premises, mandate disallowance of executor's commissions. The objectant's contention that the delay of over seven years for seeking appointment as the fiduciary from complete liquidation of the sole estate asset was unreasonable as a matter of law, thus warranting a complete denial of his executor's commissions, is unavailing. Based on this Court's finding that petitioner did not unduly delay administration of the ancillary estate and in selling the subject premises since his appointment as the executor, the Court rejects the objectant's notion based on the facts in this record.
Despite the objectant's critique and denigration of his services, petitioner actively undertook and processed the administration of the ancillary estate, readied the property for sale, and ultimately sold it to a legitimate buyer. Her objections to the final accounting contain no allegations that petitioner's computation of commissions is incorrect. Nor does the Court find that fiduciary misconduct occurred during the management of the ancillary estate or petitioner breached his fiduciary duties. Even assuming all of the objectant's allegations of mismanagement are true, such misdeeds or omissions are not sufficiently egregious to warrant denying petitioner commissions.
Under these facts, SCPA 2307 (1) mandates that commissions be paid to petitioner in the absence of mathematical error or allegations of misconduct attributable to him as the fiduciary. "To hold otherwise would be tantamount to judicial creation of procedures to attack final accounts in estate matters on grounds beyond those set forth in the [SCPA]" (Matter of Reohr, 71 A.D.2d 161, 163 [3d Dept 1979]; accord Matter of Parkinson, 138 Misc.2d 1069, 1072 [Sur Ct, Nassau County 1988]).
"To obtain such a surcharge, it is not enough for the contestants to show that the representatives of the estate did not get the highest price obtainable; it must be shown that they acted negligently, and with an absence of diligence and prudence which an ordinary person would exercise in his or her own affairs. No precise formula exists for determining whether the prudent person standard has been violated in a particular situation; rather, the determination depends on an examination of the facts and circumstances of each case" (Matter of Blaine, 209 A.D.3d at 1126 [internal brackets, quotation marks, and citations omitted]).
Contrary to her assertion, the valuations specified in the objectant's objections fail to establish that petitioner sold the subject premises at significantly below market value in 2021, that his decision to sell it was negligent, or that it was undertaken in the absence of diligence. The objectant did not submit any appraisal(s) pertaining to the real property that could give an idea of how much it was or should have been valued prior to it being sold. Similarly, the Court finds that no breach of fiduciary duty arose from petitioner's alleged lack of maintenance of or disposition of the real property (see id. at 1127).
The calculation of the commissions sought by petitioner has been set forth in his detailed Schedule I. As set out there, the commissions total $8,278.65. Given the nature of this small probate and modest value of this ancillary estate, the Court hereby approves petitioner's commissions and dismisses the objections to the payment of his commissions. No basis exists to surcharge him (see Matter of Owens, 36 Misc.2d at 1039).
IV. Application for Attorneys' Fees and/or Imposing Sanctions
Lastly, petitioner moves, pursuant to 22 NYCRR 130-1.1, for an award of attorney's fees and legal costs in the amount of $6,000, and/or imposing sanctions against the objectant. Petitioner's counsel submits an affirmation of legal services in connection with making this motion to dismiss.
In this regard, petitioner asserts that the objectant's counsel was cautioned in a notice letter (dated January 18, 2023) that if she filed objections to the accounting and "chose to proceed" in litigating this case, petitioner would make a prospective motion to dismiss the objections and also seek an award of costs and impositions for "taking a frivolous position" without legal merit. Petitioner surmises that despite his advisement to the objectant that her position was baseless and legally insufficient, she failed to adhere to his prior warning by filing objections to his accounting; so, her actions warrant granting this branch of his motion.
Petitioner asserts that he is entitled to an award of attorney's fees in the sum of $6,000 which ought to be deducted and paid directly from the objectant's share of the estate. The Court, however, rejects petitioner's contention that the objectant is/was purportedly engaging in frivolous litigation.
"A court may award a party 'costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct.' (Matter of Apostolidis, 193 A.D.3d 1039, 1040 [2d Dept 2021], quoting 22 NYCRR 130-1.1 [a]). "Conduct during litigation is frivolous and subject to sanction and/or the award of costs, including an attorney's fee, when: '(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false'" (Matter of Apostolidis, 193 A.D.3d at 1040-1041, quoting 22 NYCRR 130-1.1 [c]). "To avoid sanctions, at the least, the conduct must have a good faith basis" (Matter of Apostolidis, 193 A.D.3d at 1040-1041 [internal quotation marks and citation omitted]).
In the case at hand, petitioner failed to demonstrate that the objectant's actions are wholly frivolous within the meaning of 22 NYCRR 130-1.1 (c). "In considering whether specific conduct is frivolous, courts are required to examine 'whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent'" (Matter of Breistol, 64 A.D.3d 1122, 1124 [3d Dept 2009], quoting 22 NYCRR 130-1.1 [c] [internal brackets omitted]). Regardless of petitioner prevailing on his dismissal motion, the Court does not find that the objectant's actions in this proceeding are so completely without merit in law so as to be frivolous or that she tried to intentionally mislead petitioner. As explained above, the facts and issues in this case date back to several years. It cannot be said the objectant burdened the ancillary estate with protracted litigation for many years, so as to justify awarding petitioner and the estate counsel fees (cf. Matter of Cook, 177 A.D.3d at 1216). Moreover, it appears that the objectant did not have a full comprehension or understanding of her legal rights as it related to ownership of the subject premises with the brother and petitioner. Notably, petitioner's attorney sent the notice letter in January 2023 warning the objectant's attorney of a likelihood of this application. The warning was essentially sent two months before she filed this motion.
Similarly, imposing sanctions upon the objectant is also not warranted here. "To avoid sanctions, at the least, the conduct must have a good faith basis" (Matter of Apostolidis, 193 A.D.3d at 1041 [internal quotation marks and citation omitted]). Here, the objectant did not continually pursuit meritless claims, no warnings were issued by the undersigned, and her conduct was not "part of a relentless campaign to prolong this litigation" (Matter of Rudin, 34 A.D.3d at 372). This final accounting was not heavily litigated. The proceeding was commenced in March 2022 and no discovery occurred between the parties other than three status conferences on November 18, 2022, January 20, 2023, and March 24, 2023 - the last of which petitioner's counsel failed to appear, nor advised the Court that she could not be present. It cannot be said that the objectant's purpose of engaging in minimal litigation was to delay or harass. Therefore, the Court does not find that the objectant engaged in sanctionable conduct and declines to impose sanctions (see Matter of Apostolidis, 193 A.D.3d at 1040-1041; Matter of Marra, 123 A.D.3d 1130, 1131 [2d Dept 2014]; see also Matter of McLaughlin, 111 A.D.3d 1185, 1186 [3d Dept 2013]; Matter of Breistol, 64 A.D.3d at 1124; Matter of Leopold, 232 A.D.2d 490, 490-491 [2d Dept 1996]).
Insofar as the objectant is also pursuing an application in her opposition papers for an award of attorney's fees and costs against petitioner after her counsel submits an affirmation of services, that purported motion is not properly before the Court; and, in any event, is likewise meritless. The Court declines the objectant's request in this regard, as neither petitioner nor his counsel engaged in sanctionable conduct on this motion or by commencing this proceeding to judicially settle the final account (see generally Stangel v Zhi Dan Chen, 74 A.D.3d 1050, 1054 [2d Dept 2010]; Matter of Violet Realty, Inc. v City of Buffalo Planning Bd., 20 A.D.3d 901, 903-904 [4th Dept 2005], lv denied 5 N.Y.3d 713 [2005]).
V. Conclusion
The Court concludes that, although the objectant put forth a great deal of facts, nothing presents an issue to be adjudicated for a trial or evidentiary hearing. The record here illustrates that petitioner dealt impartially with the beneficiaries, while fulfilling his duty to sell the subject real property in an arms-length transaction at the best available price and did so after diligent, reasonable, and prudent marketing efforts. Of note, the objectant makes no assertion that she objected to the sale of the subject premises, and even if an objection was raised, petitioner acted within his powers and committed no breach of duty to the objectant when he sold the real property (see Matter of Wagner, 106 A.D.2d 646, 647-648 [2d Dept 1984]).
In passing, the undersigned is also mindful of the fact that continuing further litigation of this case would serve only to deplete the value of this modest estate. Considering its size and character, such would be contrary to the best interest of the ancillary estate. In the end, this should bring finality to the parties.
For the reasons stated herein, the Court denies and dismisses all of the objections to the final accounting with prejudice. Accordingly, that branch of petitioner's motion to dismiss the objections is granted in all respects.
To the extent not specifically mentioned herein, the parties' remaining contentions have been examined and are without merit or rendered academic based on this decision. Any other relief requested by the parties not expressly addressed herein is either moot or otherwise denied. Accordingly, it is hereby:
Ordered that that branch of the motion of petitioner PAUL A. WOOD, made pursuant to CPLR 3211 (a) (7), to dismiss the objections of JEANNE McMURRAY is GRANTED; and it is further
Ordered that each of the verified objections asserted by respondent JEANNE McMURRAY, dated November 18, 2022, as to the final accounting and schedules contained therewith (numbered "1" through "46"), are DENIED and DISMISSED with prejudice; and it is further
Ordered and Adjudged that the petition of PAUL A. WOOD to judicially settle the final account of the estate of Kathleen M. Wood a/k/a Kathleen Moffat Wood (deceased), is GRANTED; and it is further
Ordered that that branch of the motion of petitioner PAUL A. WOOD, pursuant to 22 NYCRR 130-1.1, requesting an award of attorney's fees and costs and/or imposing sanctions against the objectant JEANNE McMURRAY is DENIED; and it is further
Ordered that Petitioner shall cause a copy of this "Decision and Order" to be served with notice of entry upon the objectant JEANNE McMURRAY within ten (10) days from the date of entry; and petitioner shall cause proof of such service to be filed with the Court; and it is further
ORDERED that petitioner PAUL A. WOOD shall bring the final account to date if such is necessary; and he is directed to judicially settle the final decree, with notice of settlement in accordance with 22 NYCRR 207.37, within 60 days from the date hereof.
If necessary, petitioner's counsel is free to advise the Court that this case be calendared for a conference to address any other outstanding matters required to bring this matter to conclusion.
This constitutes the decision and order of this Court. The Clerk shall forward an entered copy to the attorneys.