In the Matter of May Dinger, deceased. David Thompson, Jr., respondent; Mary Ann Dinger Gunther, appellant. File No. 373/14
Ann Dinger Gunther, Staten Island, NY, appellant pro se.
A. Raphan, P.C., New York, NY (Matthew S. Raphan of counsel),
C. BALKIN, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX JOSEPH
J. MALTESE, JJ.
DECISION & ORDER
from a decree of the Surrogate's Court, Richmond County
(Robert J. Gigante, S.), dated January 8, 2015. The decree,
upon an order of the same court dated December 2, 2014,
directed that letters of administration be issued to the
petitioner. The notice of appeal from the order is deemed to
be a notice of appeal from the decree (see CPLR
that the decree is affirmed, with costs payable by the
decedent died on October 12, 2012, survived by one of her
daughters, the appellant. In April 2014, the petitioner, who
was the son of the decedent's predeceased daughter,
commenced this proceeding pursuant to SCPA 1001 to obtain
letters of administration for the decedent's estate. The
appellant moved to dismiss the petition, in effect, for
failure to state a cause of action. At a court appearance in
September 2014, the parties agreed to have the disputed
issues resolved based on written submissions. In an order
dated December 2, 2014, the Surrogate's Court denied the
motion to dismiss the petition and granted the petition
without a hearing. Thereafter, upon the order, the court
entered a decree which directed that letters of
administration be issued to the petitioner.
to the appellant's contention, the petition sufficiently
alleged that the decedent left no valid will (see
SCPA 1002; 2-35 Warren's Heaton, Surrogate's Court
Practice § 35.04), and the evidence submitted by the
appellant in support of her motion failed to establish that
this material fact was, undisputedly, not a fact at all
(see CPLR 3211[a]; T. Mina Supply, Inc. v
Clemente Bros. Contr. Corp., 139 A.D.3d 1040, 1041;
Matter of Saginario, 119 A.D.3d 697, 698). While the
appellant submitted a copy of the decedent's purported
will, she refused to offer the alleged original will for
probate (see SCPA 1001; Matter of
Rinder, 196 Misc. 657');">196 Misc. 657 [Sur Ct, NY County]). Moreover,
the appellant failed to establish that the petitioner was
unqualified or unfit to serve as an administrator. Although
she contends that the petitioner was merely a
"strawman" for an alleged creditor of the estate,
"a creditor of an estate is not automatically barred
from appointment as the estate's administrator, and the
pertinent inquiry is whether the fiduciary has engaged in
misconduct warranting his [or her]... removal"
(Matter of Cunningham, 63 A.D.3d 1061, 1064
[internal quotation marks omitted]; see SCPA
1002; see also Matter of Shephard, 249 A.D.2d
to the appellant's contention, the petitioner established
that he was a distributee of the decedent (see SCPA
1001[c]). The appellant correctly argues on appeal that
she had priority to receive the letters of administration
(see SCPA 1001[b]). However, she did not express
a willingness to serve as an administrator before the
Surrogate's Court and failed to file a cross petition for
letters of administration (see Matter of Page, 107
NY 266, 270-271; Estate of Chamberlin, 2007 NY Misc.
LEXIS 2308, NYLJ, Mar. 30, 2007 at 3, col 1 [Sur Ct, Dutchess
County 2007]; cf. Matter of Jordan, 89 A.D.3d 1085,
1085; Matter of Canales Chicas, 2009 NY Slip Op
31571[U], *5-6 [Sur Ct, Nassau County 2009]). Moreover, the
evidence submitted by the petitioner demonstrated that shares
allocated to a cooperative apartment were assets of the
decedent's estate (see SCPA 1002; Matter
of Tutty, 46 A.D.2d 1008, 1008; 2-35 Warren's
Heaton, Surrogate's Court Practice § 35.01),
since a joint tenancy had been severed in 2002 (see
Beudert-Richard v Richard, 72 A.D.3d 101, 105, 111;
cf. Galitskaya v Presman, 92 A.D.3d 637, 637;
Smith v Bank of Am., N.A., 103 A.D.3d 21, 27).
appellant's remaining contentions are either not properly
before this Court or without merit.
the Surrogate's Court properly denied the appellant's
motion to dismiss the petition and directed that letters of
administration be issued to the petitioner.
BALKIN, J.P., COHEN, HINDS-RADIX and MALTESE, JJ., concur.
by the petitioner to dismiss an appeal from an order of the
Surrogate's Court, Richmond County dated December 2,
2014, on the ground that it has been rendered academic. By
decision and order on motion of this Court dated June 23,
2016, the motion was held in abeyance and referred to the
panel of Justices hearing the appeal for determination upon
the argument or submission thereof.
the papers filed in support of the motion and the papers
filed in opposition thereto, and upon ...