Opinion
No. 2012–4336/A.
2013-02-8
In the Matter of Proceeding to Suspend, Modify or Revoke Letters of Administration issued to the Public Administrator in the ESTATE OF Lilly BUCHWALD, a/k/a Lily Buchwald, Deceased.
Elizabeth E. Conlin, Esq., attorney for petitioner. Gerard J. Sweeney, Esq., attorney for respondent.
Elizabeth E. Conlin, Esq., attorney for petitioner. Gerard J. Sweeney, Esq., attorney for respondent.
PETER JOSEPH KELLY, J.
The within matter highlights, unfortunately, the recurrent scenario when an individual appointed as a guardian pursuant to Article 81 of the Mental Hygiene Law, does not fulfill her statutorily mandated duties upon the death of her ward. By order and judgment of the Supreme Court of the State of New York, County of Queens, dated January 20, 2012, Beth A. Ross, Esq. (hereinafter “Ross”) was appointed the guardian of the person and property of Lilly Buchwald pursuant to Article 81 of the New York Mental Hygiene Law. Her commission issued on March 16, 2012. Lilly Buchwald's estate was estimated at $3,900,000.00.
The order and judgment provided that petitioner's compensation would be determined pursuant to SCPA § 2307.
Lilly Buchwald, however, died on May 1, 2012, prior to the collection of the brokerage account which constituted the bulk of her assets and prior to the commencement of a claim against Lilly's former attorney in fact, Roy Kozupsky, for the loss of $1,200,000.00 of decedent's assets wrongfully withdrawn from decedent's accounts.
Death of an incapacitated person, as a general matter, terminates the guardianship ( See, Vellozzi v. Drady, 267 A.D.2d 695;In re Estate of Baron, 180 Misc.2d 766;In re Allen, 16 Misc.3d 1104A). While the guardian does retain certain specific powers, for example to provide for a burial (MHL § 81.21[a][14]§ 81.36[e] ); pay bills provided the authority existed to pay such bills prior to death (MHL § 81.21[a][19] ); and to defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed (MHL § 81.21[a][20] ), any other authority is extinguished and the guardian is required by law, to notify others of the incapacitated person's death.
Specifically, MHL § 81.44(c) provides that within twenty days of the death of a ward, a guardian is required to serve a copy of the statement of death upon the court examiner, the duly appointed personal representative of the decedent's estate, or, if no personal representative has been appointed, then upon the personal representative named in the decedent's will or any trust instrument, if known, and upon the public administrator.
Furthermore, MHL § 81.44(d), requires that:
within one hundred fifty days of the death of the incapacitated person, the guardian shall serve upon the personal representative of the decedent's estate or ... the public administrator ... a statement of assets and notice of claim, and, except for property retained to secure any known claim, lien or administrative costs of the guardianship pursuant to subdivision (e) of this section, shall deliver all guardianship property to ... [the personal representative or public administrator] ...
3. any dispute as to the size of the property retained shall be determined by the surrogate court having jurisdiction of the estate.
Ross, however, apparently was either under the impression that her appointment was indefinite and uncurtailed in any manner by decedent's death, or under the illusion that her ward was just taking a long nap since she continued to act as if her authority was unfettered. Ross completely failed to comply with any of the above statutory mandates.
Instead, four months after decedent's death, petitioner submitted an order to show cause and petition to the Supreme Court which was signed on September 4, 2012. Although the order to show cause indicated that the proceeding was brought pursuant to MHL § 81.44, it is clear that the proceeding was instituted pursuant to MHL § 81.43 against Mr. Kozupsky and another entity seeking the turnover of property in the sum of $1,200,000.00. In the order to show cause initiating the proceeding, Ross, inter alia, requested a stay of “... any proceeding to probate the Last Will and Testament of Lilly Buchwald pending a conclusion to this instant action.” Putting aside the issue of the unenforceability of such a stay, it raises the question of why Ross would request such relief as it did not afford her “ward” any benefit.
On October 2, 2012, over five months after the decedent's death, petitioner purportedly concluded negotiations concerning the misappropriation of decedent's funds. Despite her lack of authority to do so, a stipulation of settlement was prepared, executed by the parties and “So Ordered” by the Supreme Court on October 16, 2012. To add further insult to injury, the “settlement” terms amounted to, in this court's opinion, a sweetheart deal for the malefactors and were completely inadequate to protect the decedent's estate.
In the interim, the Public Administrator of Queens County learned of the decedent's death and, a day prior to the agreement, filed an administration petition which listed as distributees the decedent's three alleged nieces, Mira Keidar, Ruth Azachi and Rani Leibovitz, each a resident of Israel. On October 23, 2012, Letters of Administration issued to the Public Administrator of Queens County.
Ross, meanwhile, apparently still oblivious to her statutory duties, was busy marshaling the decedent's assets, collecting over $3,111,500.00. Instead of turning the assets over to the Public Administrator and preparing an accounting, the petitioner thereafter contacted the nieces in Israel attempting to persuade them to nominate her as a co-fiduciary.
It is not lost on this court that Ross, by engaging in the conduct set forth above, would apparently be seeking commissions as a guardian and commissions as a co-administrator c.t.a. in the amount of $106,500.00 on the very same assets. Additionally, if Ross acted as her own attorney, it can be assumed she would also have sought attorney's fees for such representation.
On November 5, 2012, petitioner wrote a letter to the Public Administrator of Queens County and forwarded a copy of same to the Surrogate and to a Justice of the Supreme Court. The letter indicated that petitioner's office had received the original Last Will and Testament and that she had been retained by the beneficiaries to submit the Will for probate.
On December 4, 2012, the Public Administrator of Queens County commenced a turnover proceeding in this Court against Ross (File No.2012–4336/B). On the same day, Ross submitted the instant order to show cause and petition (File No.2012–4336/A) seeking the revocation of the letters of administration issued to the Public Administrator. Since Ross was neither a beneficiary of any part of the decedent's estate, nor a nominated executor in any testamentary instrument and, thus, did not appear to be a person interested as defined in SCPA § 103(39), the matter was set down for a hearing as to whether or not the petition should be entertained (see SCPA § 712). Based on the papers presented and after oral argument on the record, the Court finds that the petition must be denied entertainment.
SCPA § 711 provides that a co-fiduciary, creditor, person interested, any person on behalf of an infant or any surety on a bond of a fiduciary may present a petition to suspend, modify or revoke letters. Petitioner is not a co-fiduciary of the decedent's estate, a person on behalf of an infant, or a surety on a bond; nor is she a person interested as defined by statute. At the hearing, petitioner alleged a novel theory that she had standing as a creditor of the estate to bring this proceeding. Such as argument was never set forth in the petition and is specious.
More fundamentally, even if petitioner had standing to bring the proceeding, the petition fails to set forth valid grounds for the revocation of letters.
The mere fact that a purported last will and testament has now been located does not mandate that the Public Administrator's letters must be revoked. Whenever an alleged Will of a decedent is located after the grant of letters to the Public Administrator, the issue of the validity of said instrument can be determined either in the Public Administrator's accounting or by separate probate proceeding brought by one of the interested parties. Indeed, a separate proceeding has been filed to probate the instrument (File No.2012–4336/C) and seeks letters pursuant to SCPA § 707(1)(c).
Accordingly, this proceeding is dismissed.
This is the decision and order of the Court.