State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 7, 2016 520542 

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In the Matter of the Estate of

PETER T. BROWN, Deceased.

JANET BROWN-CASTRO, as

Coadministrator of the 

Estate of PETER T. BROWN,

Deceased,

Petitioner; MEMORANDUM AND ORDER

ZAN HEATH, as Coadministrator

of the Estate of PETER T.

 BROWN, Deceased,

Appellant.

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Calendar Date: February 16, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

Gallagher Law Office, Binghamton (Brian R. Gallagher of

counsel), for appellant.

__________

Clark, J.

Appeal from an order of the Surrogate's Court of Broome

County (Guy, S.), entered July 16, 2014, which, in a proceeding

pursuant to SCPA 711 and 719, granted petitioner's motion for

summary judgment and revoked respondent's letters of

administration.

Peter T. Brown (hereinafter decedent) died intestate on

April 22, 2013 and was survived by petitioner, his daughter and

sole distributee. Although petitioner had priority to serve as

administrator of decedent's estate (see SCPA 1001 [1] [b]), she
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and respondent – decedent's domestic partner – jointly sought

letters of administration, which Surrogate's Court (Smith, S.)

issued in June 2013. Thereafter, in March 2014, petitioner

commenced this proceeding seeking respondent's removal as the

coadministrator of decedent's estate. Respondent joined issue

and asserted counterclaims for petitioner's removal as

coadministrator of the estate or, alternatively, for a decree of

probate of one of the two purported wills executed by decedent

and the issuance of letters testamentary. Petitioner responded

by letter and asserted that respondent's answer and counterclaims

were untimely and, in any event, without merit. Following a

conference at which counsel for both parties appeared and rested

on their papers, Surrogate's Court dismissed respondent's

counterclaims seeking a decree of probate and letters

testamentary, converted petitioner's letter response into a

motion for summary judgment and, upon such conversion, revoked

respondent's letters of administration and issued new letters of

administration solely to petitioner. Respondent appeals,1 and we

affirm. 

Once issued, Surrogate's Court may revoke letters of

administration if there is demonstrated "[f]riction, hostility or

antagonism between [the] fiduciary and beneficiaries . . ., but

only when such enmity threatens to interfere with the

administration of the estate" (Matter of Palma, 40 AD3d 1157,

1158 [2007]; see Matter of Morningstar, 21 AD3d 1285, 1287

[2005]; Matter of Duell, 258 AD2d 382, 382-383 [1999]; see also

Matter of Beharrie, 84 AD3d 1227, 1228-1229 [2011]; Matter of

Sadowski, 21 AD3d 1034, 1035 [2005]). Here, the parties'

submissions separately established a complete breakdown of their

relationship and evidenced their inability to cooperate as

coadministrators of the estate to such an extent that

1 In his appellate brief, respondent does not challenge the

determination of Surrogate's Court to treat petitioner's letter

response as a motion for summary judgment. Accordingly, any

issue with respect thereto is deemed abandoned (see Miller v

Genoa AG Ctr., Inc., 124 AD3d 1113, 1114 n [2015]; Matter of

Fairbairn, 9 AD3d 579, 580 n [2004], lv denied 3 NY3d 612

[2004]).
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petitioner's interests as a distributee and the proper

administration of the estate were threatened. As to the parties'

respective motions for removal of the other as administrator, the

record established that only petitioner had a statutory right to

serve as administrator (see SCPA 1001 [1] [b]), that respondent

was permitted to serve as an administrator only with petitioner's

consent (see SCPA 1001 [6]) and that solely petitioner's

interests were at stake in this administration proceeding. 

Respondent's conclusory allegations of misconduct and unfitness

on the part of petitioner were insufficient to establish that she

was ineligible or unqualified to serve as administrator of the

estate or raise a genuine issue of material fact as to that

matter (see SCPA 707 [1]; Zuckerman v City of New York, 49 NY2d

557, 562 [1980]). Furthermore, while respondent asserted that he

had an interest in decedent's estate by virtue of an agreement

that he entered into with petitioner, the writings he submitted

to substantiate his claim – namely, a memorandum and a letter

written by the attorney for decedent's estate – did not satisfy

the statute of frauds as neither bore petitioner's signature and

they did little more than suggest an on-going negotiation between

respondent and petitioner regarding distribution of the estate

(see Scheck v Francis, 26 NY2d 466, 469-470 [2007]; Bennett v

First Natl. Bank of Glens Falls, 146 AD2d 882, 884 [1989];

compare Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 56-57

[1953]). Accordingly, we decline to disturb the determination of

Surrogate's Court to revoke respondent's letters of

administration and issue them solely to petitioner (see Matter of

Palma, 40 AD3d at 1159; Matter of Duell, 258 AD2d at 382-383).

McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court