In the Matter of Estate of Rubin, 99337.

• Decision Date: 01 June 2006
• Docket Number: 99337.
• Citation: 2006 NY Slip Op 04218,30 A.D.3d 668,815 N.Y.S.2d 793
• Parties: In the Matter of the Estate of LOUIS H. RUBIN, Deceased. ROBERT T. RUBIN, as Coexecutor of LOUIS H. RUBIN, Deceased, Respondent; ELLEN R. BRISKMAN, as Coexecutor of LOUIS H. RUBIN, Deceased, Appellant. (And Two Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

30 A.D.3d 668

815 N.Y.S.2d 793

2006 NY Slip Op 04218

In the Matter of the Estate of LOUIS H. RUBIN, Deceased ROBERT T. RUBIN, as Coexecutor of LOUIS H. RUBIN, Deceased, Respondent; ELLEN R. BRISKMAN, as Coexecutor of LOUIS H. RUBIN, Deceased, Appellant. (And Two Other Related Proceedings.)

99337.

Appellate Division of the Supreme Court of the State of New York, Third Department.

June 1, 2006.

Appeal from an order of the Surrogate's Court of Rensselaer County (Hummel, S.), entered February 22, 2005, which, inter alia, approved the accounting of Robert T. Rubin.

Rose, J.

After the death of Louis H. Rubin (hereinafter decedent) in 1993, Surrogate's Court appointed his three children to be coexecutors of his estate. Under his will, they were also the sole distributees. Decedent bequeathed enough shares of stock of his business, Troy News Company and its affiliates (hereinafter Troy News), to give a controlling interest to his son, Robert T. Rubin. Rubin, who had worked with his father in the employ of Troy News since 1960, already owned a substantial number of its shares, and was its president and chief operating officer. Decedent's will directed that his daughters, Ellen R. Briskman and Betsey Rosenbaum, as coexecutors, elect Rubin as the chief executive officer of Troy News. To each of his daughters, decedent bequeathed $2 million and his remaining shares of Troy News. In 2000, each coexecutor filed an accounting. Briskman and Rubin each objected to the other's account, with Briskman alleging that Rubin had mismanaged Troy News, was responsible for its eventual failure and should be surcharged for the loss of estate assets.

Following a nonjury trial, Surrogate's Court issued a decision and order carefully considering each of the parties' objections. The court found that decedent had conferred sole control of the operation and finances of Troy News on Rubin, Rubin invested large sums of his own money in the company and changing conditions in the wholesale periodical distribution business caused its eventual insolvency. Concluding that Briskman had not shown that Rubin's failure to obtain the consent of his coexecutors in operating Troy News, securing loans, transferring corporate funds or relinquishing its assets to a creditor constituted a breach of fiduciary duty, Surrogate's Court approved Rubin's accounting. Among other things, the court's order directed Rubin to submit an account decree, which was entered with the decision and order on February 22, 2005. Briskman now appeals from the decision and order, but not from the decree.

We agree with Rubin that the entry of the accounting decree was the equivalent of the entry of a judgment for purposes of appeal, terminating Briskman's right to seek appellate review of Surrogate's Court's nonfinal order and requiring dismissal of her appeal (see Matter of Buchanan, 245 AD2d 642, 643 [1997], lv dismissed 91 NY2d 957 [1998]; see also Matter of Aho, 39 NY2d 241, 248 [1976]; Matter of Zdeb, 215 AD2d 803, 804 [1995]). However, were we to...