Daniel Healy ("Healy"), a distributee of Cathleen Healy, moves for an order: (1) sanctioning Pamela Barrack, as administratrix of the estate of Cathleen Healy, and her attorneys, Gellert & Klein, P.C., for the frivolous commencement of a turnover proceeding against Daniel and Patricia Healy, and for the inaction and dereliction of duties of the administratrix in handling the administration of the estate; and (2) directing Pamela Barrack to pay legal fees incurred by Daniel Healy and Patricia Healy. The administratrix and her attorneys oppose the instant application.

Pursuant to 22 NYCRR 130-1.1, conduct may properly be found to be frivolous where it is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" or "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" or "it asserts [*2]material factual statements that are false." (22 NYCRR 130-1.1[c][1], [2], [3]; see Matter of Miller v Miller, 96 AD3d 943 [2nd Dept. 2012]; Gelobter v Fox, 90 AD3d 829 [2nd Dept. 2011].) The burden of proof is on the party seeking the imposition of a sanction or an award of an attorney's fee pursuant to 22 NYCRR 130-1.1(c). (Matter of Miller v Miller, supra, at 944].)

Under the circumstances of this case, the court finds that the commencement and continuation of the turnover proceeding was not frivolous. A fiduciary has an obligation to collect and marshal the assets of the estate. (EPTL § 11-1.1].) To that end, it is well settled that the purpose of SCPA 2103 is to "provide a vehicle through which the fiduciary can obtain information needed to determine the assets of the estate or the value [thereof], as well as to effectuate a return of the property to the fiduciary." (Matter of Granowitz, 150 AD2d 446, 446 [2nd Dept. 1989]; citing Matter of Laflin, 128 Misc 2d 348, 349 [NY Sur. Ct. 1989].).

Here, the turnover proceeding pursuant to SCPA 2103 was commenced based upon the administratrix's possession of an original deposit ticket purportedly showing a loan in the form of a deposit of funds on behalf of the decedent in the amount of $30,885.00 to Healy and Patricia Healy (the "purported loan"). The administratrix notes that the deposit ticket bears a stamp from the bank confirming the deposit. The administratrix also came into possession of documentary evidence of the purported loan in the form of a purchase and acceptance agreement between the decedent and third parties suggesting that the deposited funds were the proceeds from the sale of the decedent's mobile home. The documentary evidence suggested that the sale was completed days prior to the purported deposit. Further, the administratrix was in possession of sworn statements from two individuals concerning the purported transfer of the decedent's funds to Healy and Patricia Healy. Although the movant asserts, inter alia, the alleged expiration of the statute of limitations, the bar of the Dead Man's Statute, and notes that the proceeding was ultimately withdrawn as a basis for establishing the action was frivolous, the court cannot find on the facts presented that the proceeding was without any merit in law or fact so as to warrant the imposition of sanctions.

In addition, there is no evidence that the administratrix or her attorneys were attempting to delay or prolong the resolution of the estate or to harass or maliciously injure Healy or Patricia Healy, or that they have asserted material factual statements that are false. (See, Muro-Light v. Farley, 95 AD3d 846 [2nd Dept. 2012]; Mascia v. Maresco, 39 AD3d 504 [2nd Dept. 2007]; Matter of Wecker v. D'Ambrosio, 6 AD3d 452 [2nd Dept. 2004].)

The movant further contends that the administratrix has [*3]engaged in a dereliction of duties in the administration of the decedent's estate. Specifically, the movant asserts that the administratrix failed to conduct a search for or inventory the decedent's personal property and failed to safeguard the decedent's personal property. In opposition, the administratrix has submitted evidence indicating that she met with an appraiser to view and assess the value of the decedent's tangible personal property. The appraiser reported to the administratrix that the decedent's personal property has no significant value and that attempting to sell the personal property would have cost the estate more than the sale of such property would have netted. Additionally, the administratrix has noted that, while the tangible personal property remained in the possession of another distributee for several years, it has since been collected and is presently being stored at the administratrix's attorney's office as the estate does not have sufficient funds to pay for a storage facility to hold the valueless property. The administratrix has provided a photographic inventory of the decedent's items of personal property. The administratrix further notes that, to her recollection, the personal property retrieved is substantially the same as when she viewed the same in October 2009. In light of the foregoing, the court finds that the movant has failed to establish the administratrix engaged in a dereliction of duties so as to warrant the imposition of sanctions.

Accordingly, the movant's application for sanctions pursuant to 22 NYCRR 130-1.1 and for an award of legal fees is denied in its entirety.

Counsel for the administratrix is directed to submit a decree on notice consistent with the foregoing within twenty (20) days from the date of this decision.

The Court read and considered the following documents upon

this application:

PAGES NUMBERED

1.Notice of Motion.............................1-2

Affirmation-Hyl.........................1-5

Affidavit-Daniel Healy..................1-7

Exhibits................................1-14

2.Affidavit in Opposition-Traver...............1-12

Exhibits................................A-F

Affidavit in Opposition-Pamela Barrack..1-5

Exhibits................................A-C

3.Reply Affirmation-Hyl........................1-6

This constitutes the decision of the Court. [*4]

Dated: Poughkeepsie, New York

February 8, 2013

ENTER

HON. JAMES D. PAGONES, S.C.J.