Pursuant to a decision and order dated November 16, 2011, this Court granted summary judgment, dismissing the objections filed by Mildred Joseph (the respondent) to the accounting filed by the Public Administrator in the estate of Fred Derrick. Said decision and order is hereby rescinded, and the following is the Court's decision and order in the instant contested proceeding.

The following papers were considered on this motion:

Notice of Motion for Summary Judgment, Affirmation

and Affidavit in Support .......................................................................................... 1, 2, 3 Reply Affidavit and Affirmation ^[FN1] ............................................................................. 4, 5

Reply Affirmation..................................................................................................... 6

Background

Fred Derrick, a/k/a Alfred Derrick (the decedent), died on November 19, 1977, survived by five children, as well as by issue of a pre-deceased child. Pursuant to a written instrument dated September 30, 1977, purporting to be the last will and testament of the decedent

(the Derrick will), the decedent specifically devised certain real property located at 484 Greene Avenue, Brooklyn, New York (the real property), to his daughter, Bella Rogers (Rogers). The terms of the Derrick will also provide for a specific legacy of a one-fifth interest in certain savings accounts to the respondent, a daughter of the decedent, and designate the respondent, Rogers and another daughter as the residuary beneficiaries of his estate. The bank accounts specifically bequeathed under the Derrick will are no longer in existence, and there are no assets in the residuary estate. Thus, the real property specifically devised to Rogers constitutes the sole asset of the decedent's estate.

Rogers died, intestate, on September 12, 2000, and letters of administration in her estate [*2](the Rogers estate) were issued to the Public Administrator of Kings County (the movant).^[FN2] On

December 4, 2008, the movant filed a petition for probate of the Derrick will and for issuance of letters of administration c.t.a. The respondent filed verified objections to probate of the Derrick will on February 13, 2009, alleging it to be the product of forgery and fraud, and asserting the priority of a separate written instrument which she alleged to be the decedent's true last will and testament.^[FN3] By decision and order dated March 11, 2010 (the 2010 decision), this Court granted the movant's motion for summary judgment in the probate contest, dismissing the respondent's objections and admitting the Derrick will to probate. Letters of administration c.t.a. were issued to the movant by decree dated April 5, 2010.

The respondent filed a Notice of Appeal on April 15, 2010 (the appeal), and on October 18, 2011, the Appellate Division, Second Department, affirmed this Court's decree issued pursuant to the 2010 decision. Matter of Derrick, N.Y.L.J., Oct. 27, 2011, at 34, co. 4 (2d Dep't 2011).^[FN4]

The Accounting

The movant filed a petition for judicial settlement of his final account (the Accounting) in the decedent's estate on December 13, 2010, together with an affirmation of legal services and affidavit of due diligence. The Accounting reflects that the sole asset of the decedent's estate consists of the proceeds of the sale of the real property. The net assets of the decedent's estate are distributable to the movant as administrator of the Rogers estate, as Rogers was the sole devisee of the real property pursuant to the provisions of the Derrick will.

The Accounting states that the real property was sold at public auction on May 4, 2010 (the sale), which sale closed on June 18, 2010. The Accounting establishes the successful bid for the real property as $450,000.00, and the net proceeds of the sale, after deduction of brokers' [*3]commissions and closing costs, as $425,577.00. The Accounting reflects additional income to the decedent's estate, in the form of interest income, in the amount of $2,214.01.

Schedule C of the Accounting itemizes the funeral and administration expenses incurred between February 2008 and August 2010, consisting of, inter alia, fees for death certificates and service of process, insurance premiums, appraisals, maintenance and management fees, supervision of the real property during open houses, and auction expenses, such expenses totaling $16,587.01. Schedule C-1 of the Accounting itemizes unpaid expenses of administration, including the movant's commissions and expenses, as well as fees for the movant's counsel and filing fees with this Court. The total amount of unpaid administration expenses reflected in Schedule C-1 is $47,404.09.

The respondent filed verified objections to the Accounting on February 1, 2011. The majority of the respondent's objections relate to the timing and terms of the sale of the real property. The respondent asserts that the movant was in fact, or should have been, stayed from proceeding with said sale during the pendency of the respondent's appeal of the 2010 order, and further avers that the movant failed to respond to the appeal in a timely manner. In addition, the respondent asserts that the movant failed to serve the respondent with any pleadings or briefs which may have been filed with this Court or with the Appellate Division subsequent to the 2010 order. The respondent also asserts that the movant himself purchased the real property, at a price significantly below market value. The respondent's remaining objections assert the impropriety of the payment of the movant's commissions, expenses and counsel fees, and the consideration of any potential claims against the estate which may be asserted by the New York Department of Taxation and Finance and the New York City Human Resources Administration.

The movant filed the instant motion for summary judgment, seeking to dismiss the respondent's objections pursuant to CPLR §3212, on July 5, 2011, and the respondent filed papers in opposition on August 31, 2011. Reply papers were filed by the petitioner on September 12, 1011. The parties have agreed to submit the instant motion for decision by the Court on the basis of the papers submitted.

Summary Judgment

It is well-settled that summary judgment is a drastic remedy and is to be granted sparingly. See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). The remedy may not be granted "unless it appears that no material triable issues of fact exist." See Phillips v. Kantor & Co., 31 NY2d 307 (1972). The movant has the burden of establishing a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The evidence submitted in support of a motion for summary judgment is always scrutinized in a light most favorable to the non-moving party. Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 (2d Dep't 2005). Once a prima facie showing is made, the burden of going forward shifts to the party opposing the motion. "Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers." Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985).

The opponent of such a motion must produce evidentiary proof sufficient to establish the existence of material issues of fact requiring a trial of the action. Chance v. Felder, 33 AD3d [*4]645 (2d Dep't 2006). Generally, the party seeking to defeat a motion for summary judgment must tender evidence in opposition in admissible form. "Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue." Daliendo v. Johnson, 17 AD2d 312, 317 (2d Dep't 1989) (citing Frank Corp. v. Federal Ins. Co, 70 NY2d 966).

Upon consideration of a motion for summary judgment, a court is required to accept the evidence tendered by the opponent as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue." Barker v. Briarcliff School Dist, 205 AD2d 652, 653 (2d Dep't 1994); see also Baum v. Ragozzino, 23 Misc 3d 1104 (A), 2009 WL 884663 (Sup. Ct. New York County 2009). Alternatively, summary judgment shall be granted where the moving party has established a prima facie case for relief, and the respondent has failed to raise any material triable issues of fact. See Matter of Rudolph, 60 AD3d 685 (2d Dept 2009).

Discussion

In essence, the respondent's objections to the Accounting are grounded upon the assertion that impropriety pervades the movant's administration of the decedent's estate. At their most basic, the respondent's objections question the very authority of the movant to act as fiduciary of the decedent's estate.^[FN5] The respondent asserts that the movant acted improperly in selling the real property during the pendency of her appeal of the 2010 order, and incurred unnecessary and unreasonable expenses in arranging and effecting said sale. The respondent also asserts that the movant failed to effect proper service on her, and disputes the requirement of service on various New York state and city authorities. The respondent further accuses the movant of self-dealing, alleging that the movant himself purchased the real property at a price alleged to be below fair market value and thereafter re-sold the real property at a significant gain. The respondent also asserts that the Accounting fails to include certain claims she purportedly has against by the estate. Finally, the respondent asserts that the movant is not entitled to his statutory commissions, counsel fees or reimbursement of his expenses. The movant seeks to dismiss each of these objections, asserting that he has acted properly throughout the administration of the decedent's estate, that all fees and expenses incurred are reasonable and necessary, and that his statutory commissions are properly due and correctly calculated.

The majority of the respondent's objections center on the contention that the movant acted hastily and to the detriment of the estate in selling the real property during the pendency of the appeal. The respondent does not assert that a stay of the sale was actually in effect during this time, but simply speculates that the sale of the real property prior to determination of her appeal [*5]posed a threat to the value of the estate. The respondent also complains that the movant received extensions of time from the Appellate Division for filing his responsive pleadings to her appeal, and further asserts that she was never properly served with pleadings filed by the movant, both with this Court and at the Appellate Division.

In moving to dismiss these objections, the movant asserts his authority to act herein, and his obligation as fiduciary of the decedent's estate to proceed expeditiously with resolution of the estate. The movant denies allegations of impropriety of the sale of the real property during the pendency of the respondent's appeal, asserting that no stay of the 2010 order arose as a consequence of such appeal. The movant further asserts that the respondent did not seek to obtain a stay concurrently with filing her appeal.^[FN6] The movant further asserts that his responsive pleadings in the appeal were timely filed with the Appellate Division, and that the respondent has been properly served with process throughout the course of these proceedings. The movant appends to the instant motion a copy of his brief filed in response to the appeal, as well as copies of the decisions and orders of the Appellate Division granting the movant extensions of time to make such filing.^[FN7]The powers granted by statute to the movant, as Public Administrator of Kings County,

are enumerated in SCPA §1123, and pursuant to subsection (1) thereof, the movant is specifically granted "the powers given by law to a fiduciary of a decedent's estate." Pursuant to the provisions of EPTL §11-1.1, fiduciaries are granted broad powers in the administration of decedents' estates, including the authority to take possession of an estate's property. EPTL §11-1.1(b)(5). See also Matter of Gahan, 268 AD2d 473 (2d Dep't 2000); Matter of Osterndorf, 75 Misc 2d 730 (Sur. Ct. Nassau County 1973). The question of whether to sell estate assets, including real property, as well as the terms of any such sale, lies within the business judgment of the fiduciary. Matter of Flaum, 168 AD2d 933 (4th Dep't 1990).

It is undisputed that no stay of the 2010 order admitting the Derrick will to probate has ever been in effect, and indeed, the respondent did not seek such a stay until September 2011, approximately a year-and-a-half after filing her notice of appeal of the 2010 order, over a year after the closing of the sale and almost two months after the filing of the Accounting and her objections thereto. The respondent offers no evidence, documentary or otherwise, in support of her assertions that the sale of the real property was, or should have been, stayed during the pendency of the appeal. Further, the respondent provides no support for her assertion, beyond bald allegations, that proper service was not effected in this proceeding or any other. Nor does the respondent provide evidentiary support for her assertion that the movant failed to file a timely response to the appeal, or to serve such response properly.^[FN8]

The respondent has failed to raise any issue of triable fact with respect to the timing of the [*6]sale, the timeliness of the movant's responsive pleadings in the appeal, or the sufficiency of service of process herein. The respondent's unsupported assertions notwithstanding, the Appellate Division has, during the pendency of this motion, rendered its decision (the Appellate decision), affirming the 2010 decision which dismissed the respondent's objections to probate of the Derrick will and admitted the same to probate. Matter of Derrick, supra. Accordingly, the respondent's objections to the timing of the sale of the real property, the timeliness of the

movant's responsive pleadings in the appeal, and the sufficiency of service of process herein are dismissed as moot.

The respondent also objects to the terms of the sale of real property, accusing the movant of purchasing the real property himself and of disposing of said property at a sales price far below its true market value. The movant asserts, in seeking to dismiss these objections, that the real property was sold at a public auction to an independent third party for a fair and reasonable price, and provides a copy of the closing statement reflecting the sale of the real property to an entity identified as "484 Greene Avenue Realty, LLC."

It is well-settled that a fiduciary owes a duty of individual loyalty to the beneficiaries of an estate, and may not act for his own self-interest. Matter of Rothko, 43 NY2d 305 (1977).The evidence proffered by the movant establishes a prima facie showing that the real property was sold at public auction to an independent third party. The respondent fails to proffer any evidence whatsoever that the real property was purchased by the movant rather than the entity reflected on the proffered closing statement. Indeed, the respondent's papers in opposition to the instant motion fail to address the movant's motion to dismiss this objection. Accordingly, the respondent's objection to the accounting, asserting that the movant improperly purchased the real property, is dismissed.

The respondent also asserts that the sales price received for the real property was

The respondent relies for support of her objection to the sufficiency of the sales price on [*7]an appraisal prepared in February 2008, which purports to establish the then-fair market value of the real property as $700,00.00. The respondent further asserts that the value of the real property has risen since 2008, relying in support thereof on appended copies of tax assessment statements of the City of New York (the city tax assessments) for the real property for each fiscal year from 2007 through 2011. Said statements reflect a high point of assessed tax value in 2009, in the amount of $827,000.00, followed by a decline in value to a "tentative" valuation for the fiscal year 2012 of $594,000.00. Finally, the respondent asserts that the real property was re-sold, purportedly by the movant, some three months after the public auction, for approximately $600,000.00, and cites this as further support for her claim that the price obtained by the movant was insufficient.

In reply, the movant proffers a letter, dated September 7, 2011, from the certified appraiser (the appraiser's letter), upon whom the movant relied in valuing the real property and establishing the opening bid for the public auction thereof. The appraiser's letter addresses the basis of the difference in his appraised value of the real property and the higher values reflected in the city tax assesments. The appraiser's letter states that city tax assessments value numerous properties within a single, often quite large, area, and states that the location and condition of individual properties are not factored into such assessments. The movant asserts that the method of valuation described therein is a factor in the refusal by both the Internal Revenue Service and New York State Department of Taxation and Finance to accept city tax assessments in their determinations of fair market value of property for income tax or estate tax purposes. The movant also avers that the fact that the real property was mortgaged, after the sale, for $600,000.00 confirms that the real property was in poor condition, requiring a significant investment of funds for repair of deferred maintenance.

Where a sale of estate property has been properly conducted, resulting in receipt of a fair price on reasonable terms, ordinarily no objection will lie. In re Lovell, 23 AD3d 386 (2d Dep't 2005) (relying on Matter of Shertleff, 206 Misc. 255 [Sur. Ct. St, Lawrence County1958], appeal dismissed, 285 App. Div. 988 [3d Dep't 1958]). For the respondent's objection to be sustained, she must demonstrate more than that the movant failed to sell the real property for the highest price obtainable. Rather, the respondent is required to show that the movant acted negligently, failing to exercise the diligence and prudence an ordinary person would in the conduct of her own affairs. Matter of Scarsella, 195 A.D 2d 513 (2d Dep't 1993).

The movant has demonstrated that the real property was sold at public auction in accordance with usual and customary practices. The evidence proffered establishes a prima facie showing of the reasonableness of the sale, and the fairness of the price received. The respondent's reliance on city tax assessments (which themselves demonstrate a decline in value of the real property), together with an out-dated appraisal of the real property made at an historic high point of the real estate market, fails to overcome this showing. The respondent's assertion that the sale price obtained by the movant for the real property was not reflective of the fair market value of said property is utterly without foundation. Accordingly, the respondent's objections, asserting the insufficiency of the price obtained by the movant upon the sale of the real property, are dismissed.

The respondent's remaining objections to the Accounting assert that the movant should be denied payment of his statutory commissions, reimbursement of his expenses and payment of his [*8]counsel's fees. The respondent alleges that the movant's actions in proceeding with the sale of the real property amount to self-dealing and "dishonesty," which should result in the forfeiture of commissions. The respondent further asserts that the expenses incurred in the administration of the estate were unnecessary and excessive, and asserts that the movant is not entitled to reimbursement thereof as "they [sic] requested to be assigned to the case on their own." The respondent also asserts that the fees of the movant's counsel should not be paid out of estate assets, as "[t]hey were not retained by any of the interested parties in this case." In moving to dismiss these objections, the movant asserts that the commissions, fees and expenses are properly due and calculated in accordance with the relevant statutory provisions and administrative guidelines.

Pursuant to the provisions of SCPA §1106(1), the movant "shall retain" commissions in the amount allowed by law to fiduciaries pursuant to the provisions of SCPA §2307. The provisions of SCPA §2307 (1) set forth the mechanics of computing receiving and paying commissions on an estate. The payment of a fiduciary's commission is mandatory, and must be awarded in the absence of an error in computation or of allegations of misconduct by said fiduciary. Matter of Gottlieb, 221 AD2d 530 (2d Dep't 1995). The respondent's objections to the Accounting which assert self-dealing and impropriety on the part of the movant have been considered herein and dismissed. The respondent proffers no evidence to support a claim that the amount of commissions set forth in the Accounting have been calculated in error or should be denied on the grounds of purported misconduct. Accordingly, the respondent's objections to the payment of the movant's commissions are dismissed.

The movant also seeks dismissal of the respondent's objections to payment of the expenses incurred during the course of administration of the decedent's estate. The movant provides a complete breakdown of the expenses incurred herein, and the respondent takes issue with each and every one. The respondent objects to the payment of (i) insurance premiums on the real property, (ii) the cost of maintenance of the real property, (iii) closing costs at the sale thereof, (iv) the costs of effecting service and filing fees in the proceedings herein, (v) the costs of obtaining a transcript of her own deposition in the contested probate proceeding, (vi) the costs of supervising open houses prior to the public auction, and (vii) the costs of obtaining certified copies of the decedent's death certificates. The respondent objects to both the necessity of incurring such costs, and to the amount of each individual expense set forth by the movant. The respondent offers no substantive basis for her objections, simply arguing that such expenses were unnecessary and that the value of the amounts charged therefor is "debatable."

The provisions of SCPA §1106(3) allow the movant to be reimbursed "reasonable and necessary expenses and disbursements, and in addition, a reasonable amount for the expenses of his office." The movant has provided full disclosure of the expenses he incurred during the administration of the decedent's estate. The expenses incurred were clearly related to the proper administration of the decedent's estate, whether the preservation thereof (payments for the costs of maintenance and of insurance premiums), the sale of the real property (costs attendant to the conduct of the auction and closing costs) or the conduct of the contested probate proceeding, the appeal and preparation and filing of the Accounting (payments of filing fees, costs of litigation, service of process and death certificate). The respondent continues to complain of the movant's service as fiduciary of the decedent's estate, despite her stipulated agreement thereto over three [*9]years ago. The respondent has proffered no evidence to support any allegation that the expenses incurred by the movant are improper or excessive, beyond general expressions of disgruntlement, and thus has raised no triable issue of fact with respect thereto. Accordingly, the respondent's

objections to the payment of the expenses incurred by the movant in the administration of the decedent's estate are dismissed.

The movant also seeks to dismiss the respondent's objections to the citation of New York State Department of Taxation and Finance, as well as the New York City Human Resources Administration, as potential claimants of the decedent's estate. The respondent asserts, in her objections thereto, that such authorities could have no outstanding claims against the estate, as "I have paid all taxes of said property since the death of [Rogers]." The respondent further asserts, in opposition to the instant motion, that she has submitted a claim against the estate for payment of property taxes, which claim has been denied by the movant. The movant asserts that citation of the above-referenced authorities is required, and any possible claims they may have against the decedent's estate are unrelated to the payment of real estate taxes.

The respondent's objection to the citation of the New York State Department of Taxation and Finance and of the New York City Human Resources Administration as possible creditors of the decedent's estate reflects a fundamental misunderstanding of the instant proceeding. The possible claims of these authorities for unpaid income taxes or for reimbursement of public assistance are separate and apart from any claim the respondent may have for reimbursement of any real estate taxes she alleges that she has paid on the real property. In her papers in opposition to the instant motion, the respondent asserts that she indeed submitted a claim for the payment of real estate taxes on the real property to the movant, who rejected such claim against the estate as unsubstantiated.The Court notes that the respondent's claim against the estate for payment of real estate taxes on the real property, as submitted to the movant and as asserted herein, is a simple assertion of such payment and was unsupported by any evidence establishing said claim. Accordingly, the respondent's objection to the citation of the New York State Department of Taxation and Finance, and of the New York City Human Resources Administration, as potential claimants of the decedent's estate is dismissed.

Finally, the movant seeks to dismiss the respondent's objections to the payment of legal fees incurred by the movant in administering the decedent's estate. The respondent asserts in her objections to the Accounting that the movant's counsel was not retained by "an interested party," and further asserts that the movant has not provided proper support for the fees sought.

It is well-settled that a fiduciary is entitled to engage the services of counsel in the administration of an estate, and to be reimbursed the costs of such services as reasonable expenses of administration. See Barnum v. Cohen, 228 AD2d 957 (3d Dep't 1996); Matter of Smithers, 195 Misc 2d 510 (Sur. Ct. Nassau County 2003). Pursuant to SCPA §1108(2), counsels to the public administrators of the counties within New York City are appointed by the respective Surrogate's courts therein, and are entitled to reasonable compensation for their services, as provided by EPTL §11-1.1(b)(22). The guidelines (the administrative guidelines) for determining fees for counsel to the movant are promulgated by the Administrative Board for the Offices of the Public Administrators, pursuant to SCPA §1128.

Further, this Court has broad authority to inquire into, and indeed "bears the ultimate responsibility to decide," the reasonableness of compensation for legal services rendered to an [*10]estate. Matter of Verplanck, 151 AD2d 767 ( 2d Dep't 1989). See also Stortecky v. Mazzone, 85 NY2d 518, 525-26 (1995). The guidelines to which the Surrogate must refer in determining appropriate legal fees are set forth in Matter of Freeman (34 NY2d 1 [1974]) and

Matter of Potts (213 App.Div. 59 [1925], aff'd, 241 NY 593 [1925]), and relevant factors

include consideration of

time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and

reputation; the amount involved and the benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained: and the responsibility involved.

The remainder of the respondent's objections to the Accounting are without merit, and, accordingly, are dismissed. Based upon the foregoing, the motion by the Public Administrator seeking summary judgment, dismissing respondent's objections to the Accounting is granted.

This constitutes the decision and order of the Court.

__________________________________

HON. MARGARITA LÓPEZ TORRES

Surrogate

Date: November 30, 2011

Brooklyn, New York