This is a proceeding to compel the respondent executors to account. Letters testamentary were issued to respondents on March 20, 2001.

Petitioner, Chana Kohav, alleges that she is a creditor of the estate, in that the decedent, Emil Rausman, withdrew money from a Swiss bank account belonging to Anna Silvia Weiser, who died in Germany in 1998, by means of a Swiss power of attorney after the death of Anna Weiser. Petitioner claims that she has been named the sole heir of Anna Weiser by a German court, that the funds withdrawn from the account are rightfully hers, and that the estate of Emil Rausman is liable for the funds.

The respondent executors have filed an answer, as well as an affidavit from Dr. Martin Durr, a German attorney who is also admitted to practice law in New York, and who represents the decedent's brother in ongoing litigation in Germany concerning the petitioner's claims, alleging that the "Erbschein" is not binding on any court as to the issue of who inherits from Anna Weiser, as it is only a preliminary determination, and that the estate of Emil Rausman is preparing a suit before a competent civil court in Germany for a determination of who shall inherit from Anna Weiser.

Petitioner has also submitted a reply and, with the court's permission, a secondreply affirmation, as well as exemplified copies of documents including the decision of

the German appeals court in the litigation involving petitioner and the Rausmans, as well as certified translations of these documents. She also provided the court with an affirmation of Fritz Weinschenk, Esq., as expert testimony concerning the nature and effect of the "Erbschein" at issue here. Mr. Weinschenk's affirmation includes his credentials as well as his expert opinion that the "Erbschein" has been upheld by a German court of appeals in a decision dated March 11, 2004, and that petitioner has been named the sole heir of Anna Weiser. He also states that there is no evidence that the "Erbschein" has been revoked (or retrieved under German law), and that it is therefore entitled to recognition and enforcement in New York, pursuant to general principles of comity.

The court finds that Mr. Weinschenk is qualified to give expert testimony on, and his affidavit should be accepted as expert opinion on, the issue of the validity of the "Erbschein." The court further finds the opinion credible, and finds that the facts concerning heirship in the Estate of Anna Weiser have been fully litigated in the German courts which had jurisdiction over the persons involved. The court therefore recognizes the "Erbschein" as conferring upon petitioner the status of sole heir of the estate of Anna Weiser. See Watts v. Swiss Bank Corp., 27 NY2d 270 (1970).

Petitioner has therefore established that she has standing, as a potential creditor of the estate [*2]of Emil Rausman, to bring this petition for a compulsory accounting and for related relief. The validity of her claim, including whether the use of the power of attorney by Emil Rausman was or was not valid, will be determined within the accounting proceeding.

Respondents' argument that the statute of limitations has run on petitioner's claim is without merit. Where, as here, a petitioner seeks an accounting from a fiduciary, the proceeding is governed by the six-year statute of limitations set forth in CPLR 213 (1). Moreover, it is well settled that "a claim [of this nature] will not be deemed to accrue until there is either an open repudiation of the fiduciary obligation or a judicial settlement of the [fiduciary's] account." Matter of Rodken, 270 AD2d 784 (3d Dept., 2000), citations omitted. Here there has been no accounting and no open repudiation of the obligation.

Accordingly, the application is granted and respondents are directed to file an account and a petition for its judicial settlement within 60 days from the date hereof.

This decision constitutes the order of this court.

January, 2007

Surrogate

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