Matter of Ziess
2013 NY Slip Op 01165 [103 AD3d 534]
February 21, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 27, 2013


In the Matter of the Estate of Fred Ziess, Deceased. Gerald P. Halpern, Respondent; Alan Ziess, Appellant.

—[*1] Gaines, Gruner, Ponzini & Novick, LLP, White Plains (Joseph H. Gruner of counsel), for appellant.

Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola (Thomas J. McGowan of counsel), for respondent.

Order, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or about October 28, 2011, which, among other things, granted petitioner's motion for partial summary judgment approving a portion of his accounting as co-executor of the deceased's estate, unanimously affirmed, without costs.

The Surrogate correctly determined that in calculating the commission due a fiduciary other than a trustee under SCPA 2307 (1) and (2), for receiving and paying money, the rents to be included in the definition of money received are gross rents (Matter of Schinasi, 277 NY 252 [1938]; Matter of Amato, 265 AD2d 548, 550 [2d Dept 1999]; see SCPA 2307 [6]).

We have considered objectant-appellant's remaining arguments and find them unavailing. Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Román, JJ.