This is an application by Thomas K. Reimels, brought on by order to show cause, which seeks an order pursuant to SCPA 711 (1) suspending and removing William D. Reimels as executor; (2) revoking letters testamentary issued to William D. Reimels; (3) appointing Thomas K. Reimels as successor executor; and (4) compelling an accounting by William D. Reimels.

Mary C. Reimels died on March 12, 2006, leaving a will dated May 19, 2004. She was survived by five sons, Christopher, William, Joseph, Thomas and Robert, and one daughter Cathleen A. Kivett. The will was admitted to probate by decree dated June 27, 2006 and letters testamentary issued to William D. Reimels on the same date. The will provides for a $10,000.00 bequest to each of Christopher and Joseph. The residuary estate is divided equally between Cathleen, William, Thomas and Robert.

By petition dated February 28, 2007, Cathleen commenced a compulsory accounting proceeding against William. Thereafter, William filed his accounting, which he later amended.

The grounds asserted for removal of William D. Reimels are those set forth in SCPA 711 (2). The petitioner asserts that William has improvidently managed or injured the estate property committed to his charge or by reason of other misconduct in his office, is unfit for execution of his office (SCPA 711[2]).

More specifically, petitioner's grounds for removal are that William's actions, including [*2]engaging in frivolous litigation, have resulted in an enormous waste of estate assets. He has allegedly engaged in self-dealing and has failed to adequately account for estate assets.

Petitioner alleges that William has failed to account for the proceeds of a mortgage on the decedent's home that William obtained with a power of attorney. Petitioner also claims that William has failed to provide bank records, including records for a purported joint account between William and the decedent. The petitioner further contends that the accounting filed by William raises "additional troubling issues regarding other aspects of the estate, including the bank accounts, and the existence of a safe deposit box, the contents of which are being hidden by the respondent." According to petitioner, William has failed to comply with document and discovery demands, including demands relating to the alleged joint account, the mortgage and the production of the Glengariff Nursing Home records.

As to the allegations of self-dealing, petitioner submits a letter from William dated October 28, 2007 which recites that the mortgage proceeds were deposited into the joint account. William claims that these funds (approximately $50,000.00) were used to pay the expenses of the Glengariff Nursing Home; however, according to the petitioner, the accounting and amended accounting show payments of only $9,144.00 to Glengariff Nursing Home. Petitioner also alleges that the accounting fails to include other bank accounts in the decedent's name.

Concerning the allegation of frivolous litigation, the petitioner more specifically alleges that William has commenced a frivolous proceeding to compel an accounting from the fiduciary of the estate of Jane Nicholson, an estate of which the decedent was a beneficiary. According to the petitioner, the proceeding is a waste of estate assets since the amount at issue is only $250.00. In addition, William has brought an action for conversion and replevin in the Supreme Court of Nassau County against Cathleen Kivett and the decedent's granddaughter, Ann Christie, for the alleged removal of property from the decedent's home. The petitioner argues that the action is meritless and was only commenced in retaliation for Cathleen's questioning of William's actions as executor.

In addition, the petitioner alleges that William has failed to inventory and account for the assets in the decedent's safe deposit box. Furthermore, he claims that there is a possible later will executed in March of 2005, which William has alluded to, but is concealing.

William has filed a "Response To The Order to Show Cause," and a "Supplement To Response To Order To Show Cause." William argues that the petitioner has failed to meet his burden of proof to warrant removal. He contends that he has not impeded the administration of the estate nor has he wasted any estate assets. In addition, William argues that most of the issues raised in the order to show cause are more properly raised as objections to his accounting. He claims that there has been no self-dealing and that the $50,000.00 mortgage has been accounted for. In fact, William contends that, by appearing pro se, he has actually conserved the estate assets. William also denies engaging in frivolous litigation pointing out that it is a fiduciary's duty to recover property of the decedent. In addition, he claims to have provided bank account statements to the petitioner. William further disputes petitioner's allegation that he has failed to comply with the discovery demands and maintains that the only item in the safe deposit box was the decedent's will dated May 19, 2004. According to him, he put the May 19, 2004 will in the safe deposit box and removed a May 6, 2004 will. He claims to be unaware of a March 2005 will. [*3]

The petitioner has filed a reply affidavit in which he asserts that William's "Response" and "Supplemental Response" raise additional troubling issues. According to the petitioner, the papers submitted in opposition to the application show that there are now three additional accounts for which the fiduciary has failed to account.

The decision to suspend or remove a fiduciary lies in the discretion of the surrogate (SCPA 713; Matter of Simon, 44 AD2d 570 [2d Dept 1974]). As the removal of the fiduciary constitutes a "judicial nullification of the testator's choice," it may only be allowed when "the grounds set forth in the relevant statutes have been clearly established" (Matter of Duke, 87 NY2d 465, 473 [1996]). Further, "the rule has long prevailed that courts are required to exercise the power of removal sparingly and to nullify the testator's choice [of executor] only upon a clear showing of serious misconduct that endangers the safety of the estate . . ." (Matter of Duke, 87 NY2d 465, 475 [1996] citing Matter of Israel, 64 Misc 2d 1035, 1043 [Sur Ct, Nassau County 1970] citing Matter of Braloff, 3 AD2d 912 [2d Dept 1957]; affd 4 NY2d 847 [1958]). The burden is on the party seeking to remove the fiduciary (see Matter of Krom, 86 AD2d 689, 690 [3d Dept 1982]). Since the allegations against William Reimels are controverted by him, a hearing will be necessary. However, since the executor has already filed his accounting and there being no clear evidence of imminent harm to the estate, the court will defer the issue of the executor's removal until the trial in the accounting proceeding (2 Warren's Heaton on Surrogate's Court Practice, §33.10[2][a][7th ed]). The matter will appear on the court's calendar on July 30, 2008. All outstanding discovery demands and the issue of whether a second amended accounting is necessary will be addressed at the conference.

In addition, a court has broad authority to require on its own motion the judicial settlement of a fiduciary's account if it be in the estate's best interest (SCPA 2205, 2206; Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Morrison, NYLJ, Oct. 22, 2002 at 23, col. 3 [Sur Ct, Westchester County]). The court finds that an account of William Reimels as attorney-in-fact is in the best interests of the estate and directs the attorney-in-fact to file an account of his proceedings within sixty (60) days of the date of this decision.

This constitutes the decision and order of the court.

Proceed accordingly.

Dated: June 26, 2008

JOHN B. RIORDAN

Judge of the

Surrogate's Court