Matter of Asimov

Matter of Asimov 2024 NY Slip Op 31977(U) June 4, 2024 Surrogate's Court, New York County Docket Number: File No. 2018-759/B Judge: Hilary Gingold 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.

New York County Surrogate's Court DATA ENTRY DEPT. SURROGATE'S COURT OF THE STATE OF NEW YORK JUN 04 2024 COUNTY OF NEW YORK -------------------------------------------------------------------x Accounting by ERIC ASIMOV as the Executor Of the Will of DECISION RUTH ASIMOV, aka RUTH SALZ, File no. 2018-759/B

Deceased. -------------------------------------------------------------------x GINGOLD, S.

The following papers were read in determining the motion:

Papers Numbered Notice of Motion-Affidavit in Support of Motion 1-4 - Affirmation in Support - Exhibits -

Amendment to Affidavit in Support 5

Objections to Accounting 6

In this contested accounting proceeding, Eric Asimov-the executor of Ruth Asimov's

estate-moves pursuant to CPLR 3212 for summary judgment, to dismiss Daniel Asimov's

objections to the accounting, and to judicially settle the account. No papers have been filed in

opposition.

Background

By way of background, Ruth Asimov (hereinafter "decedent") died on February 18, 2018.

Decedent was survived by her three children: Eric Asimov, Nanette Asimov, and Daniel Asimov.

Decedent's last will and testament dated December 26, 1993, was admitted to probate on April 30,

2018. On November 21, 2022, Eric Asimov filed a petition to settle the estate's accounting for the

period February 18, 2018, to October 27, 2022. Nanette Asimov consented to settling the account. [* 1]

Daniel Asimov filed objections to the accounting.

Discussion

Summary judgment may be granted when it is clear that no triable issues of fact exist

(Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). The burden is upon the moving party to

make a prima facie showing that the movant is entitled to summary judgment as a matter of law

by presenting evidence in admissible form demonstrating the absence of material facts (id.).

In a contested accounting proceeding, the fiduciary has the burden of proving that all assets

are accounted for and that the accounting is complete and accurate. (Estate of Rudin, NYLJ, Nov

2, 2005, at 28, col 5 [Sur Court, NY County], citing Matter of Schnare, 191 AD2d 859 [3d Dept

1993]). A fiduciary makes a prima facie showing when the fiduciary files the account with an

affidavit attesting to its accuracy (SCP A § 2209). An objectant then bears the burden of coming

forward with sufficient evidence to put the completeness and accuracy of the accounting into

question (Estate of Rudin, NYLJ, Nov 2, 2005, at 28, col 5). An "objectant must come forward

with more than mere conjecture and suspicion to support his allegation that there are assets for

which the trustees have not accounted" (id., citing Zuckerman v City of New York, 49 NY2d 557

[1980]).

Based on the papers considered, Eric Asimov has made a pnma facie showing of

entitlement to summary judgment (see Alvarez, 68 NY2d at 324). The evidence he provides in

support of the motion, together with his affidavit, indicates that all of the decedent's assets are

accounted for and the accounting is complete and accurate.

Eric Asimov avers that his paternal uncle, Isaac Asimov, gave the decedent approximately

287 personally autographed or inscribed copies of his books during his lifetime (Aff of Eric

Asimov at 112; Amendment to Aff at ~2). Eric Asimov avers that the books "were not owned by

2 [* 2]

[the decedent] and are not includable as estate assets" (Aff,of Eric Asimov at ,13). He states,

moreover, that when the decedent moved from her home in Long Island to a one-bedroom

apartment in Manhattan, she gifted those volumes to Nanette Asimov (Aff, of Eric Asimov at ,12).

Eric Asimov further states that the final accounting accurately reflects the estate assets. He

contends that the objections should be dismissed.

The objectant, Daniel Asimov, has not opposed the current motion. He has not come

forward with any evidence to question the completeness and accuracy of the accounting.

Daniel Asimov's objections are dismissed as they are speculative and unsupported by any

proof. He states, in sum and substance, that two complete sets of Isaac Asimov's books, which

belonged to the decedent and which are valued at $475,000, were omitted from the estate's

accounting. He offers no additional proof aside from his conjecture and suspicion. He states that

he needs answers about the whereabouts of the books. The parties, however, were given ample

opportunity to conduct discovery and have not done so despite an order dated September 20, 2023,

in which this court scheduled discovery.

Eric Asimov's motion is granted.

Settle decree.

The Clerk of the Court is directed to send a copy of this decision to the parties listed below. ~ Dated: June ~ ' 2024

Ronald V. Zezima, Esq. rvzesq@aol.com Counsel for Exectuor, Eric Asimov

Daniel Asimov asimov@msri.org

3 [* 3]

Objectant

Nanette Asimov nanetteasimov@gmail.com

4 [* 4]