Before the Court is the petition of Christy A. Cugini seeking the issuance of preliminary Letters Testamentary to him. Petitioner is the son of decedent Mary Cugini and the nominated Executor in an instrument purporting to be the Last Will of Testament of decedent.^[FN1]

Decedent's daughter and a distributee, Donna Cugini Zancocchio, filed objections to the petition, and more pertinently, opposes the issuance of preliminary letters to petitioner. The opposition raises the issue of the fitness of petitioner to serve, claiming, inter alia, that Mr. Cugini has had a history of misappropriation, fraud, and drug abuse.

Petitioner then moved by Notice of Motion for an Order dismissing said objections and for summary judgment in his favor on the issue of his eligibility to secure preliminary Letters.

Evidentiary hearings were held before the Court on April 2 and April 27, 2009 on the issue of Christy A. Cugini's eligibility.

Petitioner conceded that he engaged in sports betting in the early 1980's and incurred gambling debts. He also began using cocaine in 1984 or 1985 while working at a local restaurant. He admitted that his parents helped to satisfy his gambling debts, but did so voluntarily upon his request. He also used their credit cards, but always with their permission. He denied stealing any money out of his mother's pocketbook.

Petitioner married in 2003, and avered that he neither used illegal substances, nor did business with loan sharks, since. In fact, he asserts that he stopped using cocaine and stopped dealing with loan sharks in 2000. He also said that his strained relationship with his parents improved after his [*2]drug use stopped. His sister Elizabeth Cugini testified that she noticed an 'enormous change' in her brother after he got married. Currently, he has two young children and is employed as a manager with the Staten Island Ferry.

Petitioner's sister Constance Pieters testified that she made payments on her brother Christy's car loan for a year, but then their father paid the remainder. She also stated that her brother borrowed $200.00 in 2004 from her but never repaid it. At one point, their parents gave her $48,000.00 for a deposit in order to purchase a house.

Petitioners' sister Donna Cugini testified that her brother Christy constantly sought to borrow money from her, from the early 1980's through 2004. She also described drug use on his part, and an incident in which he threatened to kill his sister Allison, for which the police were called. As to this incident, petitioner asserted that it was his sisters who were harassing their mother, and that he told them to leave their mother's home or he would physically remove them. She conceded that their father assisted her financially as well, paying for her divorce and preventing a foreclosure of her house.

Another sister, Allison Cugini, stated that she lived at home with her parents until 2001, and described her brother Christy's frequent requests for money from their parents over a twenty year period. She also testified that her brother admitted writing checks from his parents' account and otherwise stealing their money to pay loan sharks. She estimated the amount taken to be $15,000.00.

Petitioner's brother-in-law Joseph Cincocchio, worked with him at a local restaurant as well as at the Fulton Fish Market for several years. He corroborated petitioner's affinity for sports betting and cocaine use, as well as his obligations of several thousand dollars to loan sharks.

Several other family members testified and generally corroborated the events described hereinabove.

Any analysis of the problem of eligibility for preliminary letters starts with the proposition that in the absence of valid objections, the nominated executor should be named Temporary Administrator. (Will of Smith, 71 Misc 2d 248; Will of Mendelbaum, 7 Misc 3d 539). Valid objections are set forth in SCPA 707 (l) (e) as the 'substance abuse, dishonesty, improvidence, want of understanding, or otherwise unfit(ness)' of the individual proposed as the fiduciary. Two of these circumstances, substance abuse and dishonesty, are at issue for resolution by the Court.

As to the element of dishonesty, it must be remembered that the burden of proof rests with the objectant 'to establish petitioner's dishonesty in money matters from which a reasonable inference might be drawn that the funds of the estate would not be safe in his hands' (Estate of Klum, 86 AD2d 689, citing Matter of Flood, 236 NY 408; Estate of Horton, 255 AD2d 642; Estate of Silverman, 163 Misc 2d 602, 604; Matter of Latham, 145 App. Div. 849). More particularly, the showing against a nominated executor 'must be relatively strong in order to disqualify him' [*3](Estate of Silverman, Supra). Dishonesty must be proved; it will not be inferred (Estate of Walsh, NYLJ 7/26/07, p. 29, col 3 (Surr. Ct. Richmond Co.), citing Matter of Riede, 138 App. Div. 83).

With these principles in mind, the credible evidence demonstrates that, contrary to objectant's contentions, the bulk of the financial transactions between petitioner and his parents were made voluntarily on the part of the latter. Objectant characterizes petitioner's conduct vis-a-vis his parents as something between outright theft and placing undue pressure on them. However, the court gives credence to the evidence adduced from petitioner and his witnesses that his parents were generous by nature and that 'bailing out' their children from their financial difficulties was commonly accepted in the family, as an expression of their love and concern for the well-being of their children. Petitioner's parents may have given large sums of money to him to satisfy his drug and gambling related debts, but they also gave their daughter Constance $48,000.00 for a deposit on a house, and provided their other daughter Donna financial assistance for her divorce and to prevent a foreclosure. Decedent, while ill, took daughter Allison to a car dealer and leased a car for her.

There were some allegations that petitioner took money from his mother without her knowledge; however, the Court notes that these incidents are alleged to have taken place years ago, while he was living at home. There are no such allegations of recent vintage, and certainly not since petitioner's marriage in 2003. The Court will not infer present dishonest conduct on petitioner's part such that the money in the estate will be unsafe in his hands.

Upon the foregoing, the Court must conclude that objectant has not met her burden of demonstrating that petitioner is a 'dishonest' person within the meaning of SCPA 707 (l)(e).

In a similar vein, the weight of the credible evidence shows that petitioner's admitted use of illegal substances occurred years ago, that he was never convicted of any drug-related offense, and that he ceased its' use years ago. The court's concern is whether any substance abuse is a current habitual problem which may impair his ability to discharge his responsibilities in the future, and objectant has failed to satisfy her burden on this issue (see, e.g. Estate of Rad, 162 Misc 2d 229). The Court must thus conclude that objectant has failed to satisfy her burden of demonstrating that any substance abuse on petitioner's part disqualifies him from serving as preliminary administrator under SCPA 707 (l)(e).

Finally, it is clear that while there is a great deal of acrimony between petitioner and his siblings, there has been no showing that such acrimony would interfere with the proper administration of the estate. (Matter of Kopko, 31 AD3d 639 (2d Dept.).

The motion to dismiss the Objections is granted. That branch of the same motion for summary judgment in petitioner's favor for the relief demanded in the petition is granted. Petitioner shall be issued preliminary Letters Testamentary upon the posting of a bond in an amount satisfying SCPA 801. [*4]

Upon the posting of said bond, the appointment of The Public Administrator of Richmond County as temporary administrator by order dated April 6, 2009 shall be vacated.

This decision shall constitute the order of the Court.

7/9/2009 NYLJ 28, (col. 3)