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In re Estate of Gottlieb

May 18, 2010

IN RE ESTATE OF WILLIAM GOTTLIEB, DECEASED.
IRVING BENDER, ET AL., PETITIONERS-RESPONDENTS,
v.
CHERYL I. DIER, ET AL., OBJECTORS-APPELLANTS.
IN RE MOLLIE BENDER, DECEASED. IRVING BENDER, ET AL., PETITIONERS-RESPONDENTS,
v.
MICHAEL CORBETT, OBJECTOR-APPELLANT.



Objectors appeal from a decree of the Surrogate's Court, New York County (Renee Roth, S.), entered on or about March 13, 2008, which granted the motion of Irving Bender and Neil Bender for letters of letters of administration c.t.a. in the estate of William Gottlieb, dismissed the objections of Cheryl Dier and Michael Corbett in all respects, and denied the objectors' cross petitions for letters of administration c.t.a., and the order of the same court and Surrogate, entered on or about March 20, 2008, which, to the extent appealed from, granted the motion of Irving Bender and Neil Bender to dismiss Corbett's objections to their appointment as preliminary executors of the estate of Mollie Bender.

The opinion of the court was delivered by: Nardelli, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Richard T. Andrias, J.P., John W. Sweeny, Jr., Eugene Nardelli, James M. Catterson, Leland G. DeGrasse, JJ.

This appeal involves challenges to the issuance of fiduciary letters in two related estates. In Matter of Gottlieb, objectors Cheryl I. Dier and Michael Corbett appeal from a decree of the Surrogate's Court, New York County which, inter alia, granted the motion of Irving Bender and Neil Bender, as preliminary executors of the estate of Mollie Bender, to dismiss the objections asserted by Dier and Corbett, and granted letters of administration c.t.a. in the Gottlieb estate to the Benders. In Matter of Bender, Michael Corbett, as objector, appeals from an order of the Surrogate, which granted the motion of the preliminary executors Irving Bender and Neil Bender to dismiss Corbett's objections because he lacked standing to challenge the issuance of letters.

William Gottlieb, a prominent realtor, died in 1999, survived by his sister, Mollie Bender, and his brother, Arnold Gottlieb. His will was admitted to probate on December 28, 1999, and letters testamentary were issued to Mollie Bender, the sole legatee. William's mother, Anna Gottlieb, the named successor executor, had predeceased William.

When Mollie Bender broke her hip, she petitioned to resign as executor and for the appointment of Neil Bender, her son, as successor administrator. On July 21, 2007, however, prior to a decision on the petition, Mollie Bender died. She was survived by her husband Irving, her son Neil, and her daughter Cheryl Dier. Under a will executed November 4, 2005, Mollie had left her estate to her husband, her son Neil, and Neil's issue. Irving and Neil were designated as co-executors.

On July 19, 2007, Neil Bender filed a petition to be appointed as administrator c.t.a. for Gottlieb's estate. On August 21, 2007, Michael Corbett, Cheryl Dier's son, cross-petitioned for letters of administration c.t.a.

Neil Bender and Irving Bender also offered Mollie Bender's November 4, 2005 will for probate, and, contemporaneously, filed an application for preliminary letters testamentary. On or about July 23, 2007, an undated, printed document purporting to be a notice of appearance on behalf of Dier, Corbett and Mollie Bender's brother, Arnold Gottlieb, was filed by Carl Mayer, an attorney, in both the Bender probate proceedings and the proceeding to appoint Neil Bender as administrator c.t.a. of the Gottlieb estate. On July 24, 2007, Dier filed an affidavit disavowing Mayer's representation of her in either proceeding.

Dier, pro se, herself filed objections on July 24, 2007 to the Bender will, and also both to the appointment of the Benders as preliminary executors and to Neil's application for letters of administration c.t.a. in the Gottlieb estate. She alleged that Neil was unfit to serve as fiduciary. Dier also cross-petitioned in the Gottlieb matter for the issuance to her of letters of administration c.t.a.

Corbett, represented by Mayer, filed an objection on August 8, 2007 to the granting of preliminary letters testamentary to the Benders in Mollie's estate. In connection with his objection to Neil's appointment, Corbett submitted, inter alia, evidence of two convictions more than 15 years old for driving while impaired by alcohol, a 13-year-old federal tax lien of less than $28,000 (which had been released in 1996), and a list of small civil judgments from the early 1990s. No objections were asserted to the probate of the Gottlieb will itself.

On September 25, 2007, the Surrogate issued an order rejecting the objections to the issuance of preliminary letters testamentary to the Benders. The Surrogate held that the allegations as to Neil Bender's eligibility, even if true, did not rise to a level that would warrant disqualification. No appeal was taken.

In October 2007 the Benders filed an amended petition for letters of administration c.t.a. in the Gottlieb estate on the grounds that the statutory right to letters of administration c.t.a. emanated from their status as fiduciaries of Mollie Bender, the sole beneficiary under William Gottlieb's will. The Benders also moved to dismiss and to strike from the record the notices of appearance, objections and cross petitions filed by Dier and Corbett. In January 2008 the Benders also moved to be appointed temporary administrators c.t.a. for the Gottlieb estate.

By order entered February 21, 2008, the Surrogate held that neither Dier nor Corbett had standing under Surrogate's Court Procedure Act ยง 1418 to petition for letters of administration c.t.a., since they did not meet the criteria set forth in SCPA 1402, as they had not been named in any capacity in Gottlieb's will. The Surrogate further held that even if Dier and Corbett otherwise had standing, the Benders, as fiduciaries of Mollie Bender's estate, had priority to receive letters of administration c.t.a. The Surrogate also noted that the allegations regarding the Benders' eligibility to act as fiduciaries had been raised and addressed in the September 25, ...


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