MATTER OF CAPALDO

• Decision Date: 29 July 1999
• Citation: 263 A.D.2d 910,694 N.Y.S.2d 233
• Parties: In the Matter of the Estate of PASQUALE CAPALDO, Deceased.<BR>NORA MANON, as Executor of PASQUALE CAPALDO, Deceased. Appellant;<BR>CHRISTOPHER CAPALDO et al., Respondents.
• Court: New York Supreme Court — Appellate Division

263 A.D.2d 910

694 N.Y.S.2d 233

In the Matter of the Estate of PASQUALE CAPALDO, Deceased. NORA MANON, as Executor of PASQUALE CAPALDO, Deceased. Appellant; CHRISTOPHER CAPALDO et al., Respondents.

Peters, J. P.

Decided July 29, 1999.

Spain, Carpinello and Graffeo, JJ., concur.

Peters, J. P.

Petitioner, daughter of Pasquale Capaldo (hereinafter decedent), filed petitions to judicially settle her intermediate account as executor of decedent's estate and for an order permitting the sale of decedent's real property to satisfy outstanding estate debts. Several of decedent's children filed objections to the accounting while respondent Christopher Capaldo (hereinafter Capaldo), decedent's son, also filed an objection to the request for permission to dispose of real property. Underlying all such objections is the allegation that petitioner withheld $33,000 in cash which was removed in their presence from decedent's safe on the day of his funeral.

At the hearing held to determine whether there were any additional monies in the estate that were not reported by petitioner in her accounting, Capaldo testified that decedent kept two safes in his home. Approximately three days prior to his death, the safes were removed to petitioner's home where decedent was residing. After his funeral on January 23, 1995, Capaldo testified that the safes were opened in not only his presence but also in the presence of several other family members.^[1] He testified that the contents of one safe included $33,000 in one hundred dollar denominations which were counted out in view of the family. The other safe was filled with approximately $200 in change, some jewelry and miscellaneous documents. While the jewelry was distributed to various family members, Capaldo testified that petitioner insisted on retaining the money until all of the estate expenses were settled. Capaldo further claimed that on January 20, 1995, he took petitioner to her bank where he observed her to have $20,000 in cash yet only deposit $8,000.^[2] He believed that her cash came from the safe which contained a portion of a $54,000 life insurance settlement that decedent had earlier received from a relative. On cross-examination, Capaldo admitted that despite no mention of the $33,000 in his or any other copy of the probate petition, he never questioned its omission and never reported it to the police. He again admitted that he failed to mention the missing $33,000 to either Surrogate's Court or any of its staff at the probate hearing and, despite his attendance at a meeting with former estate attorney Michael Lynch, he again failed to make mention of it.

Concerning the discovery of the $33,000, the testimony of Generoso Capaldo, another of decedent's sons, and that of Geraldine Fletcher, decedent's daughter, closely mirrored that of Capaldo. Fletcher, however, had also appeared in Surrogate's Court on the probate petition and failed to mention the missing $33,000 despite her spew of a host of other vituperative allegations against petitioner.

Petitioner agreed that the safes were, in fact, opened on the day of the funeral but vehemently denied that $33,000 in one hundred dollar bills was found therein. She admitted to making a deposit of $8,000 into her checking account not on January 20, 1995 as Capaldo had claimed but on January 27, 1995. She confirmed that she wrote several other checks on that date pertaining to expenses of the estate, maintenance of decedent's house where Capaldo resided and an unpaid funeral bill of her mother. Petitioner contended that funds for these checks, totaling approximately $20,000, were derived from personal funds. Although at that time she was receiving approximately $800 in disability insurance...