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PROCEDURAL HISTORY   Decedent passed away intestate on September 2, 2018, survived by three sisters and two brothers. Acting pro se, the decedent’s brother, Alfred Pitts (hereinafter “the Petitioner”), filed an application with the Court on September 12, 2018, seeking his appointment as Administrator of the Estate. Petitioner initially filed waivers, renunciations, and consents from the decedent’s other four siblings in favor of his appointment, however those waivers neglected to include a provision that dispensed with an administrator’s bond, which necessitated the issuance and service of process on the decedent’s other siblings. Barbara Thomas, Betty Ward and Alvin Pitts, the decedent’s siblings, appeared by counsel at the return date and rescinded their prior consents to the appointment of the Petitioner as Administrator. Thereafter, Barbara Thomas (hereinafter “the Cross-petitioner”) filed a cross-petition seeking her appointment as Administrator of the Estate and a citation was issued for that proceeding for the Petitioner and another sister of the decedent, Linda Resto, who had previously filed a new waiver, renunciation and consent in favor of the Petitioner as Administrator to serve without a bond. Issue was joined on each proceeding with the filing of objections to each application. After several attempts to forge a settlement, Cross-Petitioner moved for summary judgment in favor of her appointment as Administrator. Petitioner also moved for summary judgment in favor of his application. DECISION At the outset, the Court recognizes that as a sibling of the decedent, each party has an equal right to serve as Administrator of the Estate. (SCPA §1001[1][e]). Barring any ineligibility of the parties under SCPA §707, where there is contest between persons in the same class of priority for appointment, the general guide for the exercise of the court’s discretion is, “that person must be appointed, who will, in the judgment of the Surrogate, best manage the estate of the intestate.” (In re Estate of Samuels, 204 Misc. 842 [Sur Ct, Kings County, 1953]). It is well settled that “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of factual issues or where an issue is arguable. (Braun v. Carey, 280 AD 1019 [3d Dept 1952]; Barrett v. Jacobs, 255 NY 520, 522 [1931]). However, in this proceeding, neither party affirmatively disputes the facts as alleged and both contend they are entitled to judgment as a matter of law. (The Walton & Willet Stone Block, LLC v. City of Oswego Community Dev. Off. & City of Oswego, 137 AD3d 1707 [4th Dept 2016]; Voss v. Netherlands, Ins. Co., 22 NY3d 728 [2014]). The grounds for disqualification of an estate fiduciary “are limited to those specified in SCPA 707 and 711, and the party alleging ineligibility bears the burden of proof.” (Matter of Palma, 40 AD3d 1157, 1158 [3d Dept. 2007]). Citing SCPA §707(e), Cross-petitioner argues that the Petitioner is ineligible to receive letters of administration due to both improvidence and his want of understanding of the laws of intestacy in New York. Cross-petitioner alleges the Petitioner transferred $140,000 of the decedent’s money to himself as her power of attorney and told the decedent’s siblings he intended to make an alternative distribution contrary to laws of intestacy. These assertions are not contested by the Petitioner. (aff of Petitioner). The Petitioner states in his affidavit that he transferred the $140,000 from the decedent’s account to his own account as her attorney-in-fact and did so at the direction of the decedent after she had consulted with an attorney, James Hinman, Esq., who prepared the decedent’s power of attorney. Attorney Hinman affirms he met with the decedent for an hour to review the power of attorney and determined the decedent “was not in severe pain, was aware of circumstance and was knowledgeable concerning her financial affairs and that she had a clear understanding of what she wanted to have done for her.” (affirmation of Hinman at 4). Hinman further states the decedent received a large sum of money from a lawsuit settlement and “wanted to be sure that her brother, as her agent, would be able to access, and dispose of in accordance to her wishes, those funds so that they would not be the subject of her will…all in the hopes that intrafamilial [sic] conflict could be avoided upon her passing.” (affirmation of Hinman at 7). Petitioner states that decedent gave him directions as to how to distribute those funds and had told his siblings of his intention to follow those directions using the power of attorney believing it was his “obligation”. Moreover, the Petitioner avers that the “money is not and has never been” his property and has filed a bank statement indicating the $140,000 withdrawn from the decedent’s account is ready to be deposited into an estate account. (aff of Petitioner at 3-5, exhibit A). While he concedes he was misguided in believing he had to obey the decedent’s oral directions, Petitioner claims he now understands those directions do not control and he has since engaged counsel. Cross-petitioner argues that Petitioner’s papers contain statements made by the decedent to the Petitioner in support of his appointment as her attorney-in-fact and as evidence of an alternative disposition of the $140,000 held by the Petitioner are inadmissible pursuant to CPLR §4519. However, those statements allegedly made by the decedent to the Petitioner as they relate to his appointment as power of attorney are not offered for the truth of the matter asserted (no one contests the validity of the power of attorney), they merely provide context for her choice of the Petitioner as her attorney-in-fact. Any directions the decedent gave the Petitioner as to the distribution of her assets are moot as Petitioner concedes those directions cannot be followed. Furthermore, the statements by attorney Hinman regarding his conversations with the decedent are excluded from the Deadman’s Statute as attorney Hinman is not an interested party to the transaction or the estate. (CPLR §4519). Petitioner asserts that the Cross-petitioner has failed to prove that he is ineligible to receive letters due to want of understanding or improvidence. “Want of understanding, as a ground for objection to the issuance of letters, means an absence of intelligence sufficient to comprehend the nature and extent of the duties of a fiduciary.” (2 Warren’s Heaton on Surrogate’s Court Practice §33.02 (6)(e) [2019]). Cross-petitioner states that Petitioner’s insistence upon an alternative disposition of the decedent’s assets as conveyed to him by the decedent renders him ineligible to serve under SCPA §707. However, while Petitioner was initially unaware of the intestacy laws, he now understands that EPTL§4-1.1 will govern the distribution of the net estate. Furthermore, an account proceeding will provide oversight of the distribution of the net estate to the decedent’s distributees. Cross-petitoner has failed to provide any evidence of want of understanding by the Petitioner so as to preclude him from serving as Administrator. Cross-petitioner asserts that Petitioner’s alleged misconduct as the decedent’s attorney-in-fact is indicative of improvidence that warrants the denial of his appointment as Administrator. Specifically, the $140,000 transfer from the decedent’s account to himself was effectuated using a Power of Attorney which did not contain a Statutory Major Gifts Rider. However, Petitioner never concealed the transfer from his siblings or his plans to distribute those monies as directed by the decedent. Furthermore, Petitioner counters he has never claimed interest or ownership of those funds, which “remain intact and undisturbed” and await to be deposited into an estate account once a fiduciary is appointed. “The term improvidence wants of precise meaning, and has been defined as that which would be likely to render the estate unsafe and liable to be lost or diminished.” (In re Estate of De Belardino, 77 Misc 2d 253, 255 [Sur Ct, Monroe County 1974]; aff’d 47 AD2d 589 [4th Dept. 1975]). “A potential conflict of interest on the part of a fiduciary, without actual misconduct, is not sufficient to render the fiduciary unfit to serve.” (Matter of Palma, 40 AD3d 1157, 1158 [3d Dept. 2007] cited by Matter of Russo, 100 AD3d 1547 [4th Dept. 2012]). Cross-petitioner has made no showing of actual misconduct or improvidence by the Petitioner while he served as the decedent’s agent nor has she shown that the Estate will suffer if administered by the Petitioner. Finally, Cross-petitioner argues that the hostility between the Petitioner and the majority of the distributees should prevent his appointment and instead should result in her appointment of as Administrator. Generally, a “well-documented hostility” between a fiduciary and persons interested in the estate may provide a basis to remove the fiduciary if that hostility “jeopardizes the interests of the beneficiaries and the proper administration of the estate.” (Matter of Rad, 162 Misc 2d 229 [Sur Ct, New York County 1994]). However, there has been no evidence of hostility among the decedent’s distributees. The affidavits of the decedent’s two siblings, Alvin Pitts and Betty Ward, do not provide sufficient insight to convince the Court that the Petitioner cannot administer the Estate impartially while adhering to this fiduciary responsibilities to all of the distributees. The Court may look to the remaining distributees to see their preference as to who should be granted letters of administration. (Matter of Mercer, 26 Misc 3d 1231[A] [Sur Ct, Bronx County 2010]). “Nonetheless, the best interests of the estate trumps the collective share of the distributees in favor of one of two distributees equally entitled to administer the estate, and the court will appoint the distributee who, under all of the circumstances, is better suited to administer the estate.” (Matter of Djeljaj, 30 Misc 3d 1229[A][Sur Ct, Bronx County 2011]). “In exercising its discretion to select one of multiple distributees, the court may consider factors such as each distributee’s: (1) relationship with the decedent; (2) business experience; and, (3) familiarity with the decedent’s affairs.” (Matter of Florio, 26 Misc 3d 1048 [Sur Ct, Nassau County 2009]). In her lifetime, the decedent chose the Petitioner to serve as her Power of Attorney and through such appointment Petitioner has peculiar knowledge of her financial affairs. Cross-petitioner concedes that the Petitioner was selected by the decedent to serve as her attorney-in-fact after the decedent’s boyfriend withdrew $18,000 from her bank account. (aff of Cross-petitioner, exhibit A). Alvin Pitts, another sibling of the decedent, opined that the decedent “entrusted” the Petitioner to be her attorney-in-fact, because he “was the only one of our siblings that has substantial money of his own.” (aff of Alvin Pitts). As previously discussed, the decedent met with James Hinman, Esq. to discuss her estate plan and the power of attorney. Hinman affirms during his meeting with the decedent, she “expressed unqualified and total confidence in her brother and intimated that she did not have similar confidence in other family members.” (affirmation of Hinman at 8). This Court finds that the Petitioner is best suited to administer the Estate. Based upon the foregoing, the Court finds that the Petitioner is eligible to receive letters and it is in the best interest of the Estate to appoint him as Administrator. (Matter of Eisenstein, 158 AD2d 597 [2d Dept. 1990]). Letters of Administration shall issue to the Petitioner, Alfred Pitts, upon his filing of a bond in the amount of $112,000 pursuant to SCPA §§708(3) and 801(1). The bond amount is calculated using the $140,000 withdrawn from the decedent’s checking account and currently held by the Petitioner and then reduced pro-rata to safeguard the intestate interests of the decedent’s other three siblings. (Estate of Persing, NYLJ, Aug. 17, 2018 at 36 [Sur Ct, Richmond County]). The Cross-petition is dismissed. Counsel for the Petitioner shall file a proposed Order consistent with this Decision of the Court. Dated: August 28, 2019 Rochester, New York

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