In re Estate of Marino
| Decision Date | 19 July 2012 |
| Docket Number | No. 2008–287/A.,2008–287/A. |
| Parties | In the Matter of the ESTATE OF Hilda MARINO, Deceased. |
| Court | New York Surrogate Court |
OPINION TEXT STARTS HERE
Nobile, Magarian & DiSalvo, LLP, (Edward J. Mitchell, Esq., of counsel) for Marianne Pagano, executor-petitioner on the application to sell realty and for summary judgment dismissing the application to revoke her letters testamentary and respondent on the application to revoke her letters testamentary.
George E. Margriples, Esq., for Elizabeth Maier and Robert Marino, respondents on the petitioner's applications and petitioners on the application to revoke the letters of administration that issued to the executor.
In this estate, the parties agreed to submit three applications for determination pursuant to CPLR 3212:(1) a petition by the executor, Marianne Pagano, one of the decedent's two daughters seeking advice and direction on the sale of real property to herself, individually; (2) a petition by the decedent's other daughter, Elizabeth Maier, and one of the decedent's two sons, Robert Marino, for a decree revoking letters testamentary that issued to the executor and directing her to account, denying her statutory commissions, awarding them legal fees, costs and disbursements, and issuing letters of temporary administration to them; and, (3) a motion by the executor, pursuant to CPLR 3212, for summary judgment dismissing the petition for the revocation of her letters testamentary and related relief. The branch of the application by the son and daughter seeking an accounting is now academic as an interim accounting was filed by the executor.
The decedent died on August 22,2006 survived by a spouse, who post-deceased her on February 7, 2011 after a guardian ad litem was appointed for him in these proceedings as he was alleged to be under a disability, and by four children, two daughters and two sons. Although article SEVENTH nominated the executor and her brother Robert as co-executors, Robert renounced and letters testamentary issued solely to the executor pursuant to a decree dated June 4, 2008. The proper construction of article THIRD of the decedent's will concerning the disposition of the real estate where the decedent's spouse and the executor's husband practiced dentistry for almost 30 years, and the demonstrated inability of the four children to reach a majority decision on almost any issue, are significant factors in deciding whether the executor's application to sell the realty should be granted.
On January 8, 2004, the date the decedent's will was executed, the decedent's spouse executed a deed transferring real property in the Bronx to the decedent, reserving a life estate to himself in that deed. Article THIRD of the decedent's will provides:
On June 29, 2011, the guardian ad litem for the decedent's spouse filed a report seeking to be relieved indicating that her ward had lived in a nursing home from June 26, 2007 to the date of his death on February 7, 2011 and his life estate in the premises terminated on his death. She also indicated that by testamentary instrument dated September 7, 2001, the spouse left his entire estate to the four children equally. Other documents in the record reveal that on the same date of his testamentary instrument, the spouse executed a power of attorney in favor of his son, Robert. On February 2, 2008, after the decedent's death, the spouse executed a renunciation and disclaimer of all his interests in the decedent's estate, including his life estate in the premises; however, that notarized document was never filed with the court.
The executor filed a petition seeking advice and direction from this court and authorization to sell the premises to herself, individually, pursuant to the first right to purchase granted in article THIRD, as well as authorization to manage the property in the interim. In support she averred that: (1) the premises is a multi-use building consisting of a three bedroom apartment on the top floor and a ground floor used one-half for dental offices and one-half for a family room, laundry room, half bathroom and storage area, all accessible from the top floor; (2) the decedent's spouse was a dentist whose practice was located in a portion of the ground floor from 1964 to 2002; (3) the executor's husband is also a dentist and, although he and the post-deceased spouse were not partners, from 1983 they had separate practices at the premises and, to date, her husband maintains his dental practice there; (4) the decedent knew the importance of the location of the business to the executor's husband and their family and intended to prevent the dispossession of her and her husband which resulted in the first right to purchase in article THIRD; (5) one solution is to determine the fair market value of the property and convey title to herself individually upon her purchase of the interests of her siblings; (6) to that end, she obtained estimates from two different realty companies, one for between & dollar;480,000 and & dollar;510,000 and another for & dollar;450,000, and she hired a real estate appraiser who appraised the property on October 31, 2008 at & dollar;510,000 and stated that the price would be & dollar;30,000 lower if there was no broker's commission; (7) as attorney-in-fact for the spouse, Robert would not agree to sell unless the price was & dollar;500,000, so she drafted a contract for that amount but then Robert refused to sign it; (8) subsequently, she found a purchaser who was willing to pay & dollar;460,000 and rent the same office space to her husband, and although Robert accepted that deal, the deal fell through; (9) Robert then proposed purchasing the property himself for & dollar;475,000 and, when she agreed to match that amount pursuant to her first right to purchase, he refused to consent; and, (10) since her appointment as executor, she initially charged & dollar;600 per month for her husband's use of 25 & percent; of the total square footage of the premises (the rent was increased while these proceedings were pending). The executor now seeks to purchase the realty for & dollar;500,000 with some adjustments.
Although the executor denominated her application as an SCPA 2107 petition for advice and direction as she seeks to sell the realty to herself, in a supporting memorandum of law the executor asserts that the court has the power, pursuant to SCPA 1902, to order a sale, and as it is clear that the children cannot function as tenants in common, the court should allow her to exercise her first right to purchase under the will. Consequently, the executor is seeking relief pursuant to both SCPA 2107 and 1902, and the court will consider both statutes in ruling upon the relief she requests.
In response to the executor's petition, Robert and Elizabeth filed joint objections and a petition seeking, inter alia, the executor's removal. They contend that the decedent's spouse obtained his life estate by deed, not by will, and the first right to purchase granted in article THIRD was intended to govern only if all parties with an interest in the realty consented to a sale. They urge that upon the decedent's death, all siblings became tenants in common of the realty subject to the life estate and Robert, as attorney-in-fact for the life tenant, had the superior right to control the realty. They assert that the executor's husband should pay fair market rent of & dollar;30,000 per year or & dollar;2,500 per month or move his practice, but the executor rejected that proposal and collects only a below market rent from her husband, leaving no reserve to maintain or improve the property. Based on these assertions, they allege that the executor: (1) wasted and improvidently managed estate assets; (2) lacks the qualifications required of a fiduciary by reason of improvidence and want of understanding; (3) is disqualified due to the acrimony and hostility she and her husband exhibited toward other estate beneficiaries; (4) has a conflict of interest which precludes her from acting in the best interests of all estate beneficiaries; (5) refused to convey the premises; and, (6) refused to deliver all of the decedent's tangible property to the spouse or his attorney-in-fact during the spouse's lifetime and refused to distribute over & dollar;200,000 to the residuary beneficiaries (a distribution of a portion of the cash was made while these proceedings were pending). In response to this petition, the executor filed an answer which, in three affirmative defenses, alleges failure to state a cause of action and that any losses to the estate are due to the culpable conduct of Robert and Elizabeth, who are also barred by the doctrine of estoppel.
The executor then moved for summary judgment dismissing the petition seeking to revoke the letters testamentary that issued to her contending that Robert and Elizabeth failed to allege any facts warranting her removal. She asserts that most of the decedent's bank accounts were held in trust for all four children or jointly with some of the children and, prior to her fiduciary appointment, Robert liquidated all of the decedent's bank accounts, commingled the decedent's assets with his own and used the money for his own personal needs before making distributions. She maintains that she does not know whether any of those accounts were held in the decedent's name alone, and she asked Robert to account for all money he collected between the date of the decedent's death and her appointment...
To continue reading
Request your trial
-
In re Goodwin
...only applicable in proceedings in which there is a nexus between the relief requested and the administration of an estate [see, In re Marino, 36 Misc.3d 1215(A) ]. Based upon the facts before the Court, therefore, the first real issue to be determined is whether such a nexus exists or wheth......