In re Matter of Estate of Corey
Decision Date | 27 August 2019 |
Docket Number | 2018-3321/B/C/D |
Citation | 108 N.Y.S.3d 791,65 Misc.3d 524 |
Parties | In the MATTER OF the ESTATE OF Aida J. COREY, Deceased. |
Court | New York Surrogate Court |
J. MICHAEL LENNON II, ESQ. and JOHN P. DEE, ESQ., Appearing for Petitioner Thomas J. Corey
BENGART & DEMARCO, LLP, Appearing for Jeffrey Markello, Esq. Estate Administrator, Steven B. Bengart, Esq., of Counsel
GEOFFREY GISMONDI, ESQ., Appearing for Christopher Corey and Olivia Corey
JEFFREY R. CARLINO, ESQ. and ROBERT J. FELDMAN, ESQ., Appearing for Rachel and Ryan Heckl
Acea M. Mosey, S. Aida Corey [hereafter, decedent] died on July 8, 2018 at the age of 92. She was survived by three children — Thomas J. Corey [hereafter, Thomas], Olivia Corey [hereafter, Olivia] and Christopher Corey [hereafter, Christopher] — and by Rachel Heckle [hereafter, Rachel] and Ryan Heckle [hereafter, Ryan], the two children of her predeceased daughter, Roseanna Heckle.
Decedent died intestate and her estate has been estimated to be worth approximately thirty million dollars [$30,000,000]. On consent and designation of all decedent's distributees (see SCPA 1001[6] ), letters of administration were issued on August 8, 2018 by this Court appointing Jeffrey Markello, Esq. [hereafter, Markello] as administrator of the estate. Markello has known the Corey family since approximately 2011, and he had previously represented the interests of decedent in various matters.
On April 4, 2019, Thomas filed a petition seeking to have Markello removed as administrator of this estate and to have himself appointed successor fiduciary. That petition has been supported by Christopher and Olivia. Markello opposes the removal application, as do Rachel and Ryan.
Also pending before this Court is an application by Markello for approval of interim fiduciary fees, which is opposed by Thomas.
Thomas' removal petition, essentially joined in by Olivia and Christopher, is grounded principally on the fact that all three of those distributees who together comprise seventy-five percent [75%] of the beneficial interests in the estate have now revoked their consent to Markello acting as estate fiduciary. Those revocations were, so the petition alleges, occasioned because Markello has, in the opinion of Thomas, Olivia and Christopher, exceeded the scope of his fiduciary duties and responsibilities. Markello disputes that claim.
Once an estate fiduciary has been appointed, SCPA 711 provides various grounds for removal, but "courts exercise their power to remove fiduciaries sparingly, typically in cases of serious misconduct or where the safety of funds is endangered" (Turano and Radigan, New York Estate Administration § 14.04[a][1][A], at p. 522 [2019 ed], emphasis added). In seeking removal, a petitioner bears the burden of establishing that a cogent reason to do so exists and that removal is in the best interests of the estate (see, e.g. Matter of Brown, 138 A.D.3d 1191, 1192, 29 N.Y.S.3d 630 [2016] ).
Thomas' main ground for Markello's removal is that Thomas and his two siblings have now revoked their consent to Markello's appointment. Because letters of administration may be granted to an eligible non-distributee such as Markello only upon the acknowledged and filed consents of all eligible distributees who are entitled to serve as fiduciary, this consent is given at the time of appointment and here was given by all distributees on August 7, 2018. Thomas, Corey and Olivia state that, having now revoked their consent to Markello's appointment, Markello's appointment can no longer stand, and they request that this Court now remove him:
The argument is that, but for the initial consent of all eligible distributees, this Court could not have appointed Markello as fiduciary. Because 75% of those distributees have now revoked their consent, this Court has no basis to allow Markello to continue to act, noting in this regard, that "[t]he quality of Mr.Markello's services is irrelevant to the effect of the revoked consents."
Thomas' argument rests on the assumption that the subsequent revocation by one consenting distributee, whether for "cause" or based on simple whim or caprice, would be sufficient to undo an SCPA 1001(6) appointment duly made by this (or any) Court predicated upon that antecedent consent. I know of no statutory or case law authority which would support such a proposition, Thomas has not directed my attention to any, and I reject such proposition as untenable to the orderly and proper administration of an estate.
Apparently as a fall-back position for removal, Thomas alleges that consent to Markello was predicated on Markello performing certain specific functions, which included that Markello would (1) prepare a petition, (2) prepare and file all required documents, including an inventory of assets and closing documents, (3) advise in marshaling/collecting assets and closing documents, (4) prepare an accounting, (5) advise regarding the discharge of debts, and (6) prepare and file a New York estate tax return. Thomas says that Markello has only performed one of those items to date, namely the preparation of a petition. Thomas claims that Markello should be removed because he has delved into matters which Thomas believes are outside the "scope of services" and has acted "beyond the scope of the Administrator's responsibilities" as Thomas understands them to be.
This argument for removal amounts to a claim that the actions and scope of responsibility articulated by Markello as he has carried out his fiduciary duties have created a conflict between himself and Thomas and his siblings. However, it is well settled that " ...
To continue reading
Request your trial