This is an unopposed motion ^[FN1]for an order granting the following multiple relief: (1) to vacate this court's decision, dated April 23, 2004, and the parties' settlement agreement, dated February 2004, and reinstate the cross-petition for letters of administration by a daughter and son of decedent, (2) to disqualify decedent's surviving spouse from serving as administrator and issue letters of administration to cross-petitioners, (3) to direct the spouse to account within 30 days of the date of this decision, (4) to surcharge the spouse for waste of estate assets, (5) to appoint a receiver to take control of the decedent's businesses and (6) to award counsel fees to movants of not less than $10,000.

The decedent died intestate on June 30, 2002, at age 56, survived by seven distributees: a spouse and six children. Four of the children, all [*2]adults, are from a prior marriage; the other two, who are infants, are the children of decedent and the surviving spouse. At the time of death, decedent owned several businesses: LRB Nurses Registry ("LRB"), El Dorado Home Health Services and Spring Garden Lounge. LRB also owns real estate at 4224 Church Ave., Brooklyn, NY.

The spouse, Rosemund-Norton Benn, filed for letters of administration by petition dated November 11, 2002. Marcelle Benn and Leyland Benn, decedent's daughter and son, respectively, filed a cross-petition for letters on June 6, 2003. In February 2004, the parties executed a settlement agreement which provided for the withdrawal of the cross-petition, without prejudice, and the issuance of limited letters of administration to the spouse upon her posting of a bond in the sum of $2,000,000.00. The settlement agreement also provided that after the bond was posted and the limited letters were issued, the spouse was required to provide (1) an informal list of assets, and financial records relevant thereto, within 30 days and (2) a formal accounting by May 31, 2004. The settlement agreement also prohibited the spouse from selling or disposing of the decedent's property without prior notice to and approval from the court. The court issued a decision, dated April 23, 2004, directing that a decree be settled pursuant to the terms of the agreement. It is the aforementioned settlement agreement and decision that the movants seek to vacate at this time. A decree was never settled.

The movants make several allegations in support of their motion. From the date of the decision on April 23, 2004, to March 26, 2006, the spouse failed to post the required bond. That brought on the movants' prior motion for similar relief which was subsequently withdrawn pursuant to a stipulation of settlement dated November 2006. Pursuant to the 2006 stipulation, decedent's spouse and daughter were to serve as co-administrators and the spouse was to secure a bond in a sum certain within 45 days of its execution. The 2006 stipulation is relevant to the present motion in demonstrating the spouse's pattern of non-compliance. To wit, she again failed to live up to the terms of her bargain, did not secure the bond, and breached all agreements. As a result, movants point out that this estate administration has been stalled for more than five years from the date of decedent's death.

The movants further allege that the spouse has dissipated estate assets, converted estate funds and used them for her own personal benefit, made loans of $249,000 to shareholders in 2003, took depreciation of $524,260.00, transferred business of $944,277.00 from LRB to Eldorado in 2003 and paid herself $350,000.00, then continued to transfer business of more than $2,000,000.00 from LRB to Eldorado in 2004-05. Finally, it is alleged that the spouse prepared tax returns for the estate from 2002-2005 showing that the estate is earning money and owns an interest in both LRB and Eldorado. However, she has not accounted for the money, has not [*3]established an estate account and has not explained the many financial discrepancies.

For all of the foregoing reasons, the movants allege that the spouse is unfit to serve as administrator and should be disqualified pursuant to SCPA 707 (e), which statute disqualifies as fiduciaries those persons who are substance abusers, dishonest, improvident, lack understanding or who are otherwise unfit to serve.

Stipulations of settlement are favored by the courts and will not be lightly set aside (Hallock v. State of New York, 64 NY2d 224 [1984]). Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, overreaching, mistake, accident or some other compelling factor, will a party be relieved from the consequences of a stipulation made during litigation (Matter of Frutiger, 29 NY2d 143, 149-150 [1971]). The Frutiger Court was addressing the withdrawal of a waiver and consent, postdecree. The Court stated as follows:

[T]he courts have usually required proof of fraud or overreaching as a condition to a party's withdrawal of his stipulated consent; but this rule, if such it is, has been applied upon motions made after entry of a decree resting upon the consent and thus requiring vacatur of the decree as well (case cites omitted) . . . . the application in each of these cases was made postdecree and thus warranted a stricter test.

With respect to predecree applications, the Court continued:

A well-considered approach to a predecree application is to be found in Matter of Bissell, 57 Misc 2d 220 (1968), in which the Surrogate, without determining, on the preliminary application, "the extent to which misrepresentation, fraud, mistake, misunderstanding, etc., are necessary to permit a withdrawal" directed that the various movants make individual applications, so that each might be considered upon its merits . . .

The Surrogate focused on the prejudice, if any, that would ensue upon the granting of the predecree applications.

The uncontroverted allegations in the present record show that over a four year period the spouse failed not only to comply with the parties' settlement agreement of February 2004 and the court's decision of April 23, 2004, but also failed to settle a decree as directed in the 2004 decision and then failed to honor the terms of a subsequent agreement in 2006. Thus, this is a predecree application for vacatur. Under the circumstances, the court finds sufficient cause and minimal prejudice in granting the motion to the extent of vacating both the settlement agreement and the April 23, 2004 decision. It is imperative that no more time be lost in administering this [*4]estate. Accordingly, the court also grants that branch of the motion to reinstate the movants' cross-petition for letters of administration. Letters shall issue to the cross-petitioners, jointly, upon their duly qualifying according to law.

Although the spouse never settled a decree, it appears that she has been acting as the de facto administrator of the estate since 2004. Accordingly, the court directs her to serve and file her account and to petition for its judicial settlement within 30 days of service upon her of a certified copy of the decree to be settled herein. The spouse shall simultaneously turn over all estate assets in her possession to the movants/cross-petitioners. That branch of the motion to surcharge the spouse for waste of estate assets is denied at this point and deferred to the accounting. That branch of the motion for the appointment of a receiver to take control of the decedent's businesses is denied as moot.

Finally, the rule is well-established in New York law that absent a provision in statute, court rule or contract providing for the recovery of attorney's fees "all parties to a controversy, the victors and the vanquished, pay their own counsel fees" (see, Matter of Urbach, 252 AD2d 318 [1999], citing, Matter of Loomis, 273 NY 76 [1937]; see also, Matter of Carver, 19 Misc 3d 1110 (A) [2008]). Accordingly, that branch of the motion for counsel fees is denied.

Settle decree.

______S/_____________Hon. Diana A. Johnson

S u r r o g a t e

Dated:Brooklyn, New York

May7 , 2008