In the Matter of Barton Kaplan, deceased. Robert Kaplan, respondent; Heather Kaplan, et al., appellants. File No. 556/02
Stephen J. Silverberg, P.C., Roslyn Heights, NY (Schram
Graber & Opell P.C. [Glenn A. Opell], of counsel), for
& Associates, P.C., Huntington, NY (Donald Novick and
Albert V. Messina, Jr., of counsel), for respondent.
WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL L. PRISCILLA HALL
SANDRA L. SGROI, JJ.
DECISION & ORDER
probate proceeding in which the administrator of the estate,
Robert Kaplan, petitioned for the judicial settlement of his
account, the objectants appeal, as limited by their brief,
from so much of an order of the Surrogate's Court,
Suffolk County (Czygier, Jr., S.), dated September 30, 2015,
as denied that branch of their motion which was for summary
judgment granting certain of their objections to the account,
and granted the administrator's cross motion dismissing
the objections on the ground of lack of standing.
that the order is modified, on the law, by deleting the
provision thereof granting the administrator's cross
motion for summary judgment dismissing the objections on the
ground of lack of standing, and substituting therefor a
provision denying the cross motion; as so modified, the order
is affirmed insofar as appealed from, with costs to the
appellants payable by the estate.
30, 2002, the decedent died intestate. The petitioner, who is
the decedent's father and administrator of the estate,
would have inherited the decedent's entire estate.
However, the petitioner renounced his interest in the estate
by serving and filing a "renunciation and
disclaimer" (hereinafter the renunciation; see
EPTL 2-1.11). As a result of the renunciation, the
objectants, who are the decedent's niece and nephew and
the petitioner's grandchildren, were each to receive a
one-sixth interest in the estate. The petitioner filed an
amended final account dated July 5, 2012. The objectants
filed numerous objections to the account.
objectants moved, inter alia, for summary judgment on certain
objections. The petitioner cross-moved for summary judgment
dismissing all of the objections on the ground that the
objectants lacked standing. He argued that the renunciation
was invalid because he conditioned the renunciation on the
objectants placing their inheritance in revocable lifetime
trusts. The Surrogate's Court denied that branch of the
objectants' motion which was for summary judgment
granting certain objections and granted the petitioner's
cross motion for summary judgment dismissing the objections.
The court found that the renunciation was invalid because the
petitioner directed that the objectants' inheritance be
placed in trusts, and, thus, the objectants lacked standing
to challenge the account. The objectants appeal.
Surrogate's Court erred in granting the petitioner's
cross motion for summary judgment dismissing the objections
at issue based on a finding that the objectants lacked
standing to challenge the accounting. Where, as here, a
decedent who died intestate was survived by a parent but no
spouse and no issue, the whole of the decedent's estate
would be distributed to the surviving parent pursuant to EPTL
4-1.1(a)(4). In that event, the objectants, who would not be
distributees, would lack standing as persons interested in
the estate (see e.g. Matter of Reape, 110 A.D.3d
1082, 1083). However, EPTL 2-1.11(c)(1) provides, in part,
that any beneficiary of a disposition "may renounce all
or part of such beneficiary's interest." Further,
EPTL 2-1.11(g) provides that "[a] renunciation may not
be made under this section with respect to any property which
a renouncing person has accepted... For purposes of this
paragraph, a person accepts an interest in property if such
person voluntarily transfers or encumbers, or contracts to
transfer or encumber all or part of such interest, or accepts
delivery or payment of, or exercises control as beneficial
owner over all or part thereof, or executes a written waiver
of the right to renounce, or otherwise indicates [an]
acceptance of all or part of such interest." Here, the
petitioner failed to establish, prima facie, that his
renunciation of his interest in the estate was invalid,
resulting in him being the sole distributee and the
objectants lacking standing as not being persons interested
in the estate. The petitioner adduced no evidence to
demonstrate that he accepted an interest in the estate by
exercising control over it as its beneficial owner prior to
his irrevocable renunciation of his interest pursuant to EPTL
2-1.11. Since the petitioner failed to establish his prima
facie entitlement to judgment as a matter of law, the court
should have denied his motion for summary judgment,
regardless of the sufficiency of the objectants'
opposition papers (see Winegrad v New York Univ. Med.
Ctr., 64 N.Y.2d 851).
the Surrogate's Court correctly denied that branch of the
objectants' motion which was for summary judgment
granting certain objections, as there are triable issues of
fact as ...