In the Matter of Estate of Sfouggatakis, 2009 NY Slip Op 50595(U) (N.Y. Surr. Ct. 4/7/2009)

• Decision Date: 07 April 2009
• Docket Number: 4372/2004.
• Citation: 2009 NY Slip Op 50595
• Parties: IN THE MATTER OF THE ESTATE OF OLGA SFOUGGATAKIS, Deceased.
• Court: New York Surrogate Court

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2009 NY Slip Op 50595(U)

IN THE MATTER OF THE ESTATE OF OLGA SFOUGGATAKIS, Deceased.

4372/2004.

Surrogate's Court of the City of New York, Kings County.

Decided April 7, 2009.

Coritsidis, Sotirakis and Saketos, PLLC, Long Island City, New York, for movant (Nicholas Sfouggatakis).

Ira K. Miller, Esq., Brooklyn, New York, for executor (George Sfouggatakis)

DIANA A. JOHNSON, J.

This order to show cause was brought by the decedent's son, Nicholas Sfouggatakis seeking an order vacating the probate decree dated June 13, 2005, setting a date for examinations pursuant to SCPA 1404 and staying the distribution of assets.

The decedent died on August 11, 2004 survived by her husband (Andrew Sfouggatakis) and four children: Nicholas A. Sfouggatakis (Nicholas), George Sfouggatakis (George), Adrianne Sfouggatakis Balopitos and John Sfouggatakis. The decedent's will was admitted to probate in this court on June 13, 2005 and was executed jointly with the decedent's husband, Andrew Sfouggatakis. Letters testamentary were granted to the decedent's son, George. The will leaves the decedent's entire estate to her husband who later died on December 9, 2007.

Nicholas argues that the probate decree should be vacated because George failed to obtain jurisdiction over him during the probate proceeding. He asserts that he was entitled to service of process in the probate proceeding as a distributee of this estate and that his siblings knew that he had permanently left the United States to reside in Greece. He shows that the citation was served at an address in Florida.

George, through his attorneys, argues that the motion should be denied. The citation was served by certified mail at Nicholas' last known address and was not returned as undelivered. George further argues that Nicholas lacked the standing to object to the will pursuant to a settlement agreement dated February 3, 2003 and an Order of the Honorable Michael L. Pesce dated August 25, 2003, authorizing the co-Guardians of the property of Andrew Sfouggatakis to enter into it. In said agreement, Nicholas waives all claims to the estate and all his inheritance rights under the laws of intestacy as well as any right to object to the probate. The settlement agreement reads, in pertinent part, as follows:

"NICHOLAS A. SFOUGGATAKIS . . . waive[s] any and all claims to the estate of ANDREW SFOUGGATAKIS and OLGA SFOUGGATAKIS. NICHOLAS A. SFOUGGATAKIS waives any right to object to the probate of the aforementioned will executed by the Incapacitated Persons on February 20, 1997. In the event the will is held to be invalid by a court of competent jurisdiction, NICHOLAS A. SFOUGGATAKIS assigns any and all rights of inheritance under the laws of intestacy of the State of New York to his siblings, GEORGE SFOUGGATAKIS, ADRIANNE SFOUGGATAKIS BALOPITOS, and JOHN SFOUGGATAKIS, in equal shares. It is expressly understood that this agreement is entered into contingent upon NICHOLAS A. SFOUGGATAKIS waiving his rights of inheritance in the future estates of ANDREW SFOUGGATKIS and OLGA SFOUGGATKIS and agreeing to the probate of the will of February 20, 1997."

The decision to vacate a probate decree is in the discretion of the surrogate (Matter of Martorano, 87 AD2d 592 [2d Dept 1982]; SCPA 209 [10]). Only a person who is a proper or necessary party to the probate proceeding may apply for vacatur (Matter of Elson, 94 Misc 2d 983 [Sur Ct, New York County 1978]), such as the decedent's distributees (SCPA 1403). An application to vacate a probate decree is granted only in extraordinary circumstances because vacatur of a decree disrupts the orderly administrative process and creates uncertainty and nonfinality with respect to judicial proceedings (Matter of White, 16 Misc 2d 22 [Sur Ct, Cattaraugus County 1959]; Matter of Gori, 129 Misc 541 [Sur Ct, Bronx County 1927]; Matter of Stern, NYLJ, Jul. 20, 1994, at 26, col 3 [Sur Ct, New York County]).

Both parties each discuss the court's jurisdiction in their papers. Nicholas alleges that he was improperly served and argues that the court lacked jurisdiction to enter into the probate decree. George argues that he followed the statutory mandates by serving Nicholas at his last known address and the certified mail was not returned. Nicholas further argues that, even though the court need not "delve" into the merits of his objections, he has a meritorious objection to the probate of the will in that the decedent lacked the capacity to make a will at the time that the will was executed.

The court agrees that a probate decree may be vacated where jurisdiction has not been obtained over a necessary party and that where jurisdiction is lacking the court need not reach the merits of the aggrieved party's claims. In order to vacate a decree in such situations, an aggrieved party need show nothing more than that the court lacked jurisdiction over him (Matter of Roe, 281 NY 541, 547 [1939]; Matter of Killan, 172 NY 547, 558-59 [1902], Matter of Rank, 14 AD2d 644 [3d Dept 1961]; Matter of Lord, 90 Misc 222 [Sur Ct, Westchester County 1915]; Matter of Monroe, NYLJ, Jun. 20, 2002, at 23, col 2 [Sur Ct, New York County). Such a...