In the Matter of Howard E. Bennett

Decision Date31 May 2011
Citation923 N.Y.S.2d 715,84 A.D.3d 1365,2011 N.Y. Slip Op. 04667
PartiesIn the Matter of Howard E. BENNETT, also known as Ward Bennett, deceased.David White, appellant;Robert Middleton, et al., respondents.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Twomey, Latham, Shea, Kelley Dubin & Quartararo, LLP, Riverhead, N.Y. (Christopher Kelley of counsel), for appellant.McNult–Spiess, P.C., Riverhead, N.Y. (James Spiess of counsel), for respondent Robert Middleton.Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (William W. Esseks, Stephen R. Angel, and Nancy Silverman of counsel), for respondent Andrew Sabin.JOSEPH COVELLO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

[923 N.Y.S.2d 716 , 84 A.D.3d 1365]

In a proceeding pursuant to SCPA 702 to obtain limited letters of administration for the estate of Howard E. Bennett, also known as Ward Bennett, the petitioner, David White, appeals, as limited by his brief, (1) from so much of an order of the Surrogate's Court, Suffolk County (Czygier, Jr., S.), entered December 21, 2009, as granted the motion of Robert Middleton to dismiss the amended petition, granted the motion of Andrew Sabin for leave to intervene in the proceeding, and revoked his ancillary letters testamentary, and (2) from so much of an order of the same court entered June 24, 2010, as, upon renewal and reargument, adhered to the original determination in the order dated December 21, 2009.

ORDERED that the appeal from the order entered December 21, 2009, is dismissed, as that order was superseded by the order entered June 24, 2010, made upon renewal and reargument; and it is further,

ORDERED that the order entered June 24, 2010, is affirmed insofar as appealed from, with one bill of costs payable by the appellant personally.

The decedent Howard E. Bennett, also known as Ward Bennett, was a Florida domiciliary at the time of his death on August 13, 2003. The decedent's will provided, inter alia, for the petitioner, David White, and Robert Middleton to each receive a 20% share of the decedent's multimillion dollar estate. The will was admitted to probate in Florida on September 22, 2003, and the decedent's nephew was appointed the fiduciary of the estate (hereinafter the Florida proceeding).

The Florida proceeding terminated pursuant to a settlement agreement dated June 30, 2004, in which White, Middleton, and the other beneficiaries under the decedent's will executed waivers of a final accounting and an acknowledgment of the sufficiency of payments received, and released the fiduciary from distributing any further payments (hereinafter the settlement).

While the Florida proceeding was still pending, White commenced this proceeding for the ancillary probate of the decedent's will in the Surrogate's Court, Suffolk County. He also commenced a discovery proceeding in the same court on April 7, 2005, pursuant to SCPA 2103 (hereinafter the discovery proceeding). The discovery proceeding sought to assert a cause of action alleging fraud with respect to the transfer of the decedent's home in East Hampton, New York (hereinafter the property), based on allegations that Middleton sold the property as the decedent's attorney-in-fact to an individual named Andrew Sabin in 2002, for substantially less than its fair market value.

The Surrogate's Court held the discovery proceeding in abeyance pending the determination of White's petition to reopen the Florida proceeding and establish a basis for the Surrogate's Court to exercise subject matter jurisdiction over the estate. The Florida court denied White's petition to reopen the Florida proceeding by order dated September 4, 2007, finding, inter alia, that White waived “any opportunity to maintain further proceedings in a Florida administration, as a predicate to the New York ancillary administration and litigation of the alleged fraud claim against Middleton” (hereinafter the Florida determination) and a similar release executed by the beneficiaries of the estate “preclude[d] reopening of an estate to pursue a contingent...

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