Fuller

Fuller 2024 NY Slip Op 33118(U) July 8, 2024 Surrogate's Court, Bronx County Docket Number: File No. 2023-1255 Judge: Nelida Malave-Gonzalez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

SURROGATE'S COURT, BRONX COUNTY

July 8, 2024

ESTATE OF GWENDOLYN ELIZABETH FULLER, Deceased File No.: 2023-1255

Pending before the court in this administration proceeding is an order to show

cause filed by Michelle Noonan ("Movant"), one of the decedent's daughters, requesting

(i) leave to file late objections and a cross petition and (ii) the issuance of temporary and

full letters of administration. Movant's application is opposed by Candice Rivera, who is

another daughter and the petitioner herein ("Petitioner").

The decedent died a widow on October 11, 2021, survived by Movant, Petitioner,

and two sons. The estate's principal asset is a single family home in the Bronx (the

"Realty"). Movant resides in the Realty, maintaining exclusive possession thereof.

On or about June 29, 2023, Petitioner commenced the instant proceeding to obtain

letters of administration. The sons consented to the application. Movant was served with

a citation and appeared on the court's virtual platform on the February 22, 2024 return

date and waived any jurisdictional defects. The matter was adjourned to April 9, 2024 to

allow Movant to file objections and a cross-petition.

On April 9, 2024, Movant appeared before the court and stated that she had just

retained the Morgan Legal Group P.C. ("MLG") as her counsel. No attorney from MLG

appeared on that date, notwithstanding multiple attempts by the court to contact someone

at the firm. The matter was then adjourned to April 18, 2024. The court ordered

objections and a cross-petition to be filed by April 16, 2024, or the matter would be [* 1]

submitted without objection. Movant was directed to advise her counsel accordingly.

MLG subsequently filed a notice of appearance with the court dated April 8, 2024.

Movant failed to file objections or a cross-petition by the April 16th deadline. An

attorney from MLG appeared for Movantwhen the matter was heard on the April 18, 2024

calendar. Inasmuch as Movant's counsel provided no reasonable excuse for failing to file

opposition papers, the Petitioner's application was marked "submitted." The court

thereafter issued a written decision and order dated April 19, 2024, awarding letters of

administration to Petitioner and directing the settlement of a decree. A decree was settled

on all parties, returnable on May 17, 2024. To date, the decree has not been signed.

Movant now seeks to vacate her default so she can, inter alia, file late objections

and a cross-petition. Movant argues that such relief is warranted because her failure to

file opposition papers was not intentional, but the result of MLG neglecting to properly

calendar the matter. Movant further contends that Petitioner is unfit to serve as the

estate's fiduciary because she: (i) has threatened to remove Movant from the Realty; (ii)

has not paid her share of the Realty's property taxes; and (iii) overstated the value of the

Realty in the petition.

In opposition, Petitioner counters that Movant had been given nearly two months

to file papers, and allowing objections at this juncture would result in unnecessary delay.

Petitioner points out that the decedent died nearly three years ago, and the only

distributes benefitting from the estate to date is Movant, who is living at the Realty rent-

free. Moreover, Petitioner asserts that the valuation of the Realty was based in part on a

written appraisal, a copy of which was provided, and that Movant has allowed the Realty

to fall into disrepair, thereby lowering its market value. Finally, Petitioner argues that even

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if objections were to be filed, the Petitioner should prevail because three of the estate's

four distributees have consented to Petitioner serving as the administrator.

The Surrogate's Court has an inherent power to vacate its own order or decree

(SCPA § 209 [1 O]; CPLR § 5015). Such vacatur is a matter within the sound discretion

of the court and should only be exercised under extraordinary circumstances (see Matter

of Menzies, 2020 NY Misc Lexis 1145 [Sur Ct, Orange County 2020]).

As a threshold matter, Movant's application to vacate her default must demonstrate

(i) a reasonable excuse for the delay and an absence of willfulness and (ii) a meritorious

claim which is not established by allegations in a conclusory form, but instead sets forth

by sufficient facts to afford a substantial basis for the contest and a reasonable probability

of success (see Matter of Will of Boyce, 158 AD2d 422,423 [2d Dept. 1990]; In re Martin's

Estate, 14 Misc2d 266, 267 [Sur Ct., New York Cty 1944 ). Movant fails to establish either

of these two prongs.

As for the reasonableness of Movant's excuse, it is undeniable that she has had

almost three years to apply for letters of administration, yet she never sought to do so,

choosing instead to stay in the Realty, effectively depriving the estate's other distributees

of their distributive shares. Movant waited almost two months after the first court

appearance to hire counsel, and the general excuse that objections were not timely filed

because of a law office failure is unavailing.

As for the probability of success, Movant fails to articulate how Petitioner is unfit to

serve as the estate's administrator. Even if true, Movant's allegation that Petitioner

"threatened" to remove her from the Realty is no basis for denying Petitioner's application

for letters. Movant does not have the right to exclusive possession of the property to the

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detriment of the other distributees, and it is likely that the Realty will have to be sold, either

to Movant (who indicates she wishes to purchase the Realty) or a third party (requiring

Movant to vacate the premises), so the distributees can receive their respective shares

of the estate. Likewise, the claim that Petitioner has not paid any portion of the property

taxes for the Realty, which is in the exclusive possession of Movant, does not disqualify

Petitioner from serving as a fiduciary, nor does Petitioner's valuation of the Property.

Moreover, as three of the four distributees consent to Petitioner's appointment as the

administrator, the court finds that Movant has not shown any plausible reason why she,

and not Petitioner, should receive letters of administration (see Matter of Sheppard, 63

AD3d 1358 [3d Dept 2009]; In re De Hart's Estate, 8 Misc.2d 531 [Sur Ct, Richmond Cty

1957]; In re Estate of Samuels, 204 Misc. 842 [Sur Ct, Kings Cty 1953]; SCPA 1001 [1 ][f]).

Petitioner has presented credible evidence that further delay will dissipate the

Realty's value. There has been no showing of extraordinary circumstances that would

warrant relieving Movant of her default in filing objections and a cross-petition. The court

has already determined that Petitioner is qualified to serve as the estate's administrator.

Accordingly, the relief sought in Movant's order to show cause is denied in its entirety.

Letters of administration shall issue to Petitioner.

This decision constitutes the order of the court.

Decree signed.

~lMkM ~NELIDA MALA E ~ SURROGATE EZ,

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