In this SCPA 2103 proceeding, the executor, a 50 percent beneficiary under the decedent's will, seeks the turnover by the respondents, the decedent's two sisters and only distributees, of personal property belonging to the decedent. The respondents are not beneficiaries under the decedent's will. The property that the executor seeks to recover on behalf of the estate consists of an automobile and miscellaneous personal property or, alternatively, the sum of $50,000.

One sister, Pauline Kosofsky, who was formerly represented by counsel and testified at the inquisitorial stage of the proceeding, appeared pro se on the return date of process, was granted additional time to file a responsive pleading, but failed to file objections to the relief requested (see Matter of Goldberg, NYLJ, Mar. 1, 2011, at 28, col 3). The other sister, Estelle Miller, who is alleged to presently reside in a nursing home, was served with process and defaulted. Based on this state of the record, the matter was set down for an inquest hearing. Both respondents were given notice of the inquest, and neither appeared.

The petitioner testified that he and the decedent's husband, Nathan Goldberg, who predeceased on April 23, 2004, went to a Toyota dealership in May, 2003, where Nathan purchased a new Toyota Avalon. The documentary proof, consisting of an invoice from Fordham Auto Sales, Inc., establishes that the vehicle was purchased on May 10, 2003 for $28,400. The bill of sale and registration were in the decedent's sole name, and the vehicle was transferred by Pauline to a third party in January, 2005, during the decedent's lifetime. At her SCPA 2103 examination, Pauline testified that the decedent suffered from mental and physical infirmities, she took care of the decedent on a daily basis for one month after Nathan's death, and thereafter, the decedent was admitted to a nursing home. Pauline conceded that she disposed of the vehicle and most of the contents of the apartment when she was notified by the decedent's cooperative apartment management company to "remove the vehicle" and "empty the decedent's apartment." From the time [*2]that the decedent became totally incapacitated in 2005 until her death on December 17, 2005, in essence, Pauline became the de facto fiduciary of all of the decedent's affairs. She gave conflicting testimony as to whether she donated the automobile to a charity, sold it for the sum of $7,000, or sold it for $14,000. During the inquisitorial stage of the proceeding, Pauline was asked to supply documentary proof as to what she actually did with the automobile and what she received for its transfer, but she never supplied any documents. As the documents in evidence at the inquest indicate that when the automobile was sold by Pauline it was two years old and had only 1903 miles on the odometer, it appears reasonable to assess damages of $14,000 solely against her.

The proof adduced with regard to the allegation that Pauline also disposed of other personal property of more than de minimis value is speculative. Although not specifically mentioned in any prior pleading, the petitioner presented some evidence concerning a Steinway piano that allegedly belonged to the decedent. The petitioner testified that the decedent and her husband purchased this piano for the use of their predeceased son, Robert, and that the petitioner noticed the piano when he visited the decedent's apartment at various times prior to the decedent's death; however, he did not establish whether the piano was new or used when purchased, or its condition when it was removed from the apartment. The only purported valuation that was submitted is a letter written by someone at a Florida retail piano company, based not even on a picture of the piano at issue, but, instead, on a second-hand description supplied by another beneficiary of the estate and her husband. That letter recites: "regarding the theft of Steinway Grand. . .as I am told was at the apartment of the Goldbergs the year before [Nathan's] demise" and, in the individual's opinion, "the value is estimated between $15,000 and $30,000."

Although the petitioner alleges that Pauline improperly removed a "valuable" Steinway piano from the decedent's apartment prior to her death, at her inquisitorial examination Pauline testified that she called a charitable organization to remove all of the furniture from the decedent's cooperative apartment. She also stated that she had a receipt for those items but was unable to locate it, and although the charity removed some items, other furniture remained. She received no money from the charity with respect to the alleged items removed from the apartment and received only a receipt for a charitable deduction in an unspecified amount. Pauline was never specifically asked whether there was a piano in the apartment, and, if so, whether she knew who removed it.

Here, the petitioner offered no proof that Pauline or someone else at her direction removed the piano, and the evidence offered at inquest as to the value of the piano is virtually of no probative value. There was no bill of sale, appraisal based on a physical inspection, insurance policy or other document indicating actual condition or value. As to the clothing and costume jewelry that was allegedly removed by Pauline, the executor's own testimony established that these items had more of a sentimental value than a significant monetary value, as he testified at the inquest that all of the "good jewelry" had been recovered from a safe deposit box.

The failure of a party to appear at an inquest hearing after that party's liability has been established does not relieve the petitioner of fulfilling his burden of proof as to the damages to be assessed against the defaulting party (see Paulson v Kotsilimbas, 124 AD2d 513 [1988]). Here, the court, upon the proof adduced by the petitioner at the inquest, lacks any basis to realistically value the piano or other items removed from the decedent's apartment (see Matter of Meagher, NYLJ, Jan. 9, 2004, at 25).

Accordingly, the petitioner is entitled to the entry of a decree directing the respondent Pauline [*3]to pay the sum of $14,000 together with interest at the statutory rate of nine percent from December 17, 2005, the date of the decedent's death (see CPLR 5001 [b], 5004). Notwithstanding Pauline's default at the inquest, the decree to be entered hereon shall be settled upon her. No proof has been submitted that the respondent Estelle Miller caused any items of value to be removed from the decedent's apartment or that she in any way participated in the transfer of the decedent's automobile. Accordingly, the court dismisses all branches of the application seeking relief against this respondent.

Settle decree and proceed accordingly.

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SURROGATE