In this estate, which has been plagued with litigation, after the examinations of several nonparty witnesses and the preliminary executor who is the decedent's son from his first marriage, the objectants in the will contest, the decedent's three children from a later marriage, petitioned to revoke or suspend the son's preliminary letters testamentary and for the appointment of one of them or someone selected by the court in his stead. The objectants also seek to recover from the son counsel fees they incurred in this proceeding.

The objectants allege that the preliminary executor: (1) by his own testimony demonstrated that he had no knowledge of the operations of the decedent's business, Haber Management Co., Inc., although he represented to the court that he was "groomed" by the decedent to manage the decedent's real estate interests; (2) failed to marshal the assets of that company, resulting in the complete loss of its value to the estate; (3) failed to marshal valuable personal property belonging to the decedent, which remains in a storage facility; (4) failed to file estate tax returns or an inventory of assets; (5) emptied the decedent's safe deposit box which contained approximately $20,000 in cash immediately after the decedent's death, removed the contents to Florida, and did not return the proceeds to his attorneys until after he was directed to do so by the court; (6) entered into a fraudulent marriage with his step-brother's girlfriend solely for immigration purposes that was annulled after a few months; and, (7) continues to refuse to communicate with the objectants or hold a memorial service for the decedent in accordance with the family's religious beliefs.

The preliminary executor opposes the petition asserting, inter alia, that the objectants' papers contain blatant misrepresentations and reargue various issues that were previously determined by the court. Specifically, he denies their material allegations and contends that: (1) he was groomed by the decedent to run a different entity, 750 Gerard Properties Corp.; (2) the decedent personally managed properties for Haber Management, none of which was owned by the decedent, and that company had no value after the decedent's death; (3) the former temporary administratrix, an objectant whose letters were revoked, did not list Haber Management as a valuable estate asset on her petition; (4) the New York State estate tax return and inventory of assets were prepared and [*2]timely filed, and he was advised that no federal tax return is required because of the size of the estate; (5) many of the problems in preparing the estate tax return and other financial statements resulted from the refusal of the former temporary administratrix to turn over the assets that she briefly managed and her failure to account for same, although she was directed to do so by the court; (6) the sum of $21,000 representing all proceeds in the decedent's safe deposit box was placed in an estate account pursuant to the order of the court prior to his appointment as preliminary executor; (7) he is unable to gain access to a storage locker into which the former temporary administratrix placed some of the decedent's possessions because she failed to supply written authorization to the storage facility; and, (8) because of the objectants' acrimony towards him, he was forced to communicate with them exclusively through his attorneys who furnished them with copies of suggested designs and text for the decedent's tombstone, but the objectants refuse to approve any of the proposals. In addition to opposing the relief requested by the objectants, the preliminary executor seeks to recover from the objectants counsel fees he incurred in this proceeding.

The court previously granted preliminary letters testamentary to the nominated executor over the opposition of the former temporary administratrix (see Matter of Haber, NYLJ, Aug. 31, 2009, at 24, col 2). In that prior proceeding the court addressed the cash removed from the decedent's safe deposit box which, in accordance with the court's direction, is now deposited in an interest bearing estate account in this jurisdiction. The allegation of a fraudulent marriage is unsupported by any evidence and the objectants do not even allege that the preliminary executor was ever charged with criminal conduct as a result of this marriage. In any event, in the absence of a felony conviction for such conduct, those allegations are irrelevant to the administration of this estate. The estate tax return issue is moot as it appears that no penalty was incurred for estate taxes and an inventory of assets was filed, and any delay was occasioned, at least in part, by the failure of the former temporary administratrix to provide the preliminary executor with the requisite documentation and turn over the assets that she collected during her tenure. The failure to erect a tombstone to date is due to both sides quibbling over an inscription. The objectants failed to establish that either the decedent's personal possessions or Haber Management Co., after the decedent's death, was of any value. These and other such issues are properly the subject of an accounting proceeding.

The objectants' contention that the preliminary executor previously falsely claimed to have expertise in managing real property owned by others is a misstatement by them of his prior sworn statements wherein he stated that he was familiar with managing the realty owned by the decedent. Moreover, the preliminary executor's interest in this estate, regardless of the outcome of the will contest, coupled with the restrictions placed on the preliminary letters, should provide sufficient protection for all parties.

Accordingly, for the reasons stated above, and based upon the authority cited in this court's prior determination granting the son's petition for preliminary letters testamentary (see Matter of Haber, NYLJ, Aug. 31, 2009, at 24, col 2, citing Matter of Duke, 87 NY2d 465 [1996]; Matter of Horton, 255 AD2d 642 [1998]; Matter of Vermilye, 101 AD2d 865 [1984]; Matter of Bayley, 72 Misc 2d 312 [1972], affd 40 AD2d 843 [1972], lv denied 31 NY2d 1025 [1973]; Matter of Smith, 71 Misc 2d 248 [1972]; Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 5A, SCPA 1412, at 344), the court finds that the objectants failed to establish a statutory basis for the revocation of the letters that issued to the preliminary executor (see SCPA 711; Matter of Israel, 64 Misc 2d 1035,1043 [1970]; Matter of Weiss, 33 Misc 2d 773 [1962]), and their application [*3]to revoke those preliminary letters testamentary and for other relief is denied without prejudice to their right to seek appropriate relief in an accounting proceeding. Similarly, the preliminary executor's request for counsel fees is denied without prejudice to his raising this issue in an accounting proceeding. It appears to the court that both sides, instead of pursuing a plethora of intermediate relief, would be better served by focusing upon expeditiously resolving the will contest and, thereafter, expeditiously concluding the administration of the estate. This decision constitutes the order of the court.

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SURROGATE