In the Matter of Andre Heino

• Decision Date: 18 May 2010
• Citation: 901 N.Y.S.2d 671,73 A.D.3d 1062,2010 N.Y. Slip Op. 04391
• Parties: In the Matter of Andre HEINO, deceased.Harvey Heino, respondent;Jay Heino, appellant.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 1062

901 N.Y.S.2d 671

2010 N.Y. Slip Op. 04391

In the Matter of Andre HEINO, deceased.Harvey Heino, respondent;Jay Heino, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 18, 2010.

Gallet Dreyer & Berkey, LLP, New York, N.Y. (Harvey Schwartz of counsel), for appellant.Katlowitz & Associates, New York, N.Y. (Moshe Katlowitz of counsel), for respondent.WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RANDALL T. ENG, and SHERI S. ROMAN, JJ.

In a probate proceeding in which Harvey Heino, a co-executor of the estate of Andre Heino, petitioned to judicially settle the account of the estate, the objectant Jay Heino appeals from an order of the Surrogate's Court, Kings County (Torres, S.), dated December 3, 2008, which granted the petitioner's motion for summary judgment dismissing certain objections to the account, and denied as untimely his cross motion for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the petitioner's motion which was for summary judgment dismissing the objection based on the failure to include a 17.986% interest in a partnership known as 63 Associates as an asset of the decedent's estate, and substituting therefor a provision denying that branch of the petitioner's motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The decedent, Andre Heino, died on July 26, 1997, survived by his three sons—Harvey (hereinafter the petitioner), Jay (hereinafter the appellant), and George. Co-letters testamentary were issued to each of the decedent's sons in December 1999. More than six years later, in June 2006, the petitioner filed an account of the distribution of the assets of the estate, and both of his brothers filed objections to the account. By notice of motion dated April 15, 2008, the petitioner moved for summary judgment dismissing three of the objections which his brothers had raised. The subject objections alleged that the petitioner failed to account for three estate assets: (1) the decedent's alleged 17.986% interest in a partnership known as 63 Associates, which owns a large commercial property on Avenue U in Brooklyn, (2) the proceeds from the satisfaction of a mortgage held by the decedent against the Avenue U property, and (3) the proceeds from the sale of a property located on Avenue S in Brooklyn owned by the decedent. On or about July 18, 2008, the appellant served a cross motion, inter alia, for summary judgment in his favor on numerous objections, and opposed the petitioner's motion. The Surrogate granted the petitioner's motion for summary judgment, and denied the cross motion as untimely. We modify.

In an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate ( see Matter of Tract, 284 A.D.2d 543, 727 N.Y.S.2d 148; Matter of Schnare, 191 A.D.2d 859, 860, 594 N.Y.S.2d 827). “While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete” ( Matter of Tract, 284 A.D.2d 543, 727 N.Y.S.2d 148 [internal quotation marks omitted]; see Matter of Campione, 58 A.D.3d 1032, 1034, 872 N.Y.S.2d 210; Matter of Schnare, 191 A.D.2d at 860, 594 N.Y.S.2d 827).

Contrary to the Surrogate's determination, the petitioner failed to make a prima facie showing that the decedent did not own an interest in 63 Associates at the time of his death. In support of his position that the decedent owned no interest in 63 Associates, the petitioner submitted, inter alia, the partnership agreement and the affidavit of one of the entity's partners. However, the petitioner also submitted a list of his late mother's assets which he had prepared for the attorney handling her estate, which indicated that his parents owned a 17.986% interest in the partnership. In addition, a federal...