This is a contested accounting proceeding. It was initiated by Gerald K. Abrams ("Gerald") pursuant to SCPA §2205 to compel his brother, Rudolph G. Abrams ("Rudolph"), to account for his activities as voluntary administrator. Rudolph applied for this position under SCPA Article 13. Rudolph opposed the application to compel and urged its dismissal. Nonetheless, Rudolph then filed his own petition to settle his account as voluntary administrator for the period of March 14, 2005 through September 30, 2006.

Gerald and Craig M. Abrams ("Craig"), the remaining sibling, have filed separate objections to the account. Gerald has raised a jurisdictional defense as his first objection. However, the alleged lack of personal jurisdiction relating to this proceeding pertains to Craig. On the other hand, Craig does not raise the defense in his own set of objections. Therefore, objection number 1 filed by Gerald is dismissed sua sponte.

The issues raised by the objectants can be summarized as follows. The objectants urge that Schedule A is deficient in that all estate assets are not identified. The only asset listed is a payment of insurance proceeds to the estate of $4,380.14. It is uncontroverted that the voluntary administrator used the proceeds to partially pay the funeral bill. Objectants further allege that a bank account in the joint names of the decedent and the voluntary administrator with rights of survivorship with a date of death balance of $18,600.00 should have been included as an asset. Gerald alleges the account in question was one of convenience and not a joint tenancy. He believes it is an estate asset to be distributed pursuant to EPTL §4-1.1(a)(3). Next, the objectants allege that the voluntary administrator improperly paid the sum of $1,800.00 from estate assets for his personal legal fees. They also object to the voluntary administrator's alleged failure to include a Schedule E (Distributions of Principal) in the account. Finally, they object to the voluntary administrator paying to himself and Craig each the sum of $3,600.00, but nothing to Gerald.

The voluntary administrator has filed a verified answer to the objections, to which counsel for the objectants has replied.

The New York State legislature enacted SCPA Article 13 to expedite the administration of small estates. (New York Estate Administration, 2007 Ed., Turano & Radigan, §8.01.) It is a summary procedure. (SCPA §1304.)

Generally, when an accounting under SCPA Article 22 is contested, the court ordinarily [*2]schedules a pretrial conference to narrow the issues for trial or possible settlement. (22 NYCRR §207.29[c].) It can entertain a motion to dismiss pursuant to CPLR 3211. Absent a settlement, the court will schedule a hearing date to receive evidence on the outstanding objections. (New York Estate Administration, supra, §6.03[b].)

SCPA Article 13 does not provide for a formal accounting by the voluntary administrator. The statute simply requires the voluntary administrator to file with the clerk of the court a statement of all assets collected and of all payments and distributions. (SCPA §1307[2].) However, the parties have elected to litigate their differences via the accounting. It would seem that the procedure on its face is appropriate. (see, SCPA §2208.)

The CPLR applies to practice and procedure in the Surrogate's Court where no other procedure is provided by the act. (SCPA §102; 22 NYCRR §207.1[d].) CPLR Article 4 addresses itself to special proceedings. All proceedings in the Surrogate's Court are special proceedings. (SCPA §203.) CPLR Rule 409(b) provides:

"Summary determination. The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. The court may make any orders permitted on a motion for summary judgment."

In the event the objectants fail to raise triable issues of fact by an evidentiary showing and only assert conclusory or speculative statements, judgment without a hearing is proper. (Matter of Friends World College v. Nicklin, 249 AD2d 393 [2d Dept. 1998]; Matter of Lefkowitz v. Daro Chartours, Inc. & Stein, Jr., 72 AD2d 872 [3d Dept. 1979].)

The pleadings in Surrogate's Court consist of the petition, answer or objections and account. (SCPA §302[1].) The documents before the court in this matter are a petition, account, objections and answer. The controversy is ripe for summary determination.

The petitioner has filed proof that the decedent opened the controverted account with the Bank of Millbrook on October 26, 1998. She died on March 14, 2005. The account is identified as "joint with survivorship." The signatures of the decedent and Rudolph appear at the end of the form. There is a presumption of joint tenancy with survivorship under these facts. (Banking Law §675.) Other than expressing a belief that the account was one of convenience, neither objectant has offered proof in acceptable form to rebut the statutory presumption. (Matter of Hayevsky, 302 AD2d 524, 525 [2d Dept. 2003]; Matter of Van Bogelen, 204 AD2d 650 [2d Dept. 1994). Rudolph succeeded to sole ownership of the account as surviving joint tenant. Craig's objection number 1 and Gerald's objection number 2 are dismissed.

The funeral bill totaled $13,294.63. The voluntary administrator used the only reportable asset (insurance proceeds of $4,380.14) to pay a portion of the bill. The balance was paid from his personal funds. The legal expense of $1,800.00 was also paid from his own funds. The issues of reporting the expense in the account and appropriateness are academic. Craig's objection number 2 and Gerald's objection number 3 are dismissed.

The court has previously determined that Rudolph is the surviving joint tenant of the Bank of Millbrook account, and therefore, the sole owner. How he chooses to disburse the funds is within his discretion. Craig's objection number 3 and Gerald's objection number 4 are dismissed. In sum, all of the objections are dismissed.

On this application, the Court considered the petition for compulsory accounting supported by one exhibit, answering affidavit with one exhibit, reply affidavit, petition for [*3]judicial settlement of account, account, objections (Gerald K. Abrams) with one exhibit, objections (Craig M. Abrams) with one exhibit, answer to objections, and affirmation.

The foregoing constitutes the decision and decree of the Court.

Dated:Poughkeepsie, New York

August 29, 2007

ENTER

Hon. James D. Pagones, S.C.J.

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082407 decision