This is a petition by an executor for payment of a personal claim against the estate (SCPA 1805 [2]). Respondent moves to dismiss the petition (CPLR 3211).

Decedent died on September 23, 1999 survived by two sons, Glen Spiritis (petitioner) and Scott Spiritis (respondent). Her last will and testament dated July 8, 1997 was admitted

to probate by a decree of this court dated October 21, 1999 and letters testamentary issued to Glen Spiritis.

Article "Third" of the will directs Glen Spiritis to "create" a trust and transfer title to a condominium in Ocean Front, Long Beach, to the trust. The will provides that Glen Spiritis has the right to determine when the property is sold and also the amount of rent to be charged. However, the will does not specifically designate Glen Spiritis as trustee. Under the terms of the will, Glen Spiritis and Scott Spiritis each have a one-half interest in the trust. By agreement dated March 10, 2000, the beneficiaries attempted to create additional terms for the trust including a provision designating Glen Spiritis as trustee. Letters of trusteeship have never issued. Respondent alleges, and it is not disputed, that Glen Spiritis transferred title to the condominium from himself as executor to himself as trustee. Scott has resided in the condominium since 1987. In 2012, after receiving a notice from Glen Spiritis to vacate the premises, Scott Spiritis commenced a proceeding, which is now pending, for construction of the will. The petition for construction seeks a determination that Article " Third" created a passive trust which is invalid and the brothers are therefore owners of the real property as tenants in common.

In 2000, as executor of the estate, Glen Spiritis furnished a handwritten statement of [*2]assets collected and payments made from the estate. He filed an estate tax return and distributed the assets of the estate.

On this petition, Glen Spiritis now seeks payment of his claims from the assets of the estate which have been distributed. The categories of claims are for: (1) repayment of alleged loans to the decedent as evidenced by checks dating from 1982; (2) reimbursement for advances made in connection with the administration of the estate; and (3) reimbursement for taxes and expenses paid in connection with the condominium.

Respondent moves to dismiss on the grounds that: (1) the statute of limitations has expired on the claims; and (2) petitioner cannot assert personal claims against the estate after he has distributed all of the assets of the estate.

Under SCPA 1805 (2) an executor can present his claim for judicial approval prior to an accounting proceeding. This subdivision was enacted to prevent the running of interest on the debt and to allow any collateral on the debt to be released (Temporary Commission on Modernization Revision and Simplification of the Law of Estates [5th report Legislative Doc. No.19 [1966] Appendix M at 2898]). The statute provides for: (1) a determination of the validity of a claim; and (2) authorization for payment of the claim (Matter of Bender, 56 Misc 2d 585 [Sur Ct, Nassau County 1968]).

Respondent alleges that it is not the purpose of SCPA 1805 to provide for review of an executor's personal claim where he has distributed all of the assets. Essentially, respondent's argument is that the executor has not stated a cause of action within the scope of the statute (see Duffy v RMSCO, Inc,. 34 AD3d 1285 [4th Dept 2006]). As to this argument, the motion to dismiss should be read to include CPLR 3211 (a) (7) even though reference is not made to that subdivision (Schnectady Int'l Inc., v Employee's Ins. of Nassau, 245 AD2d 754 [3d Dept 1997]).

In this case, the assets of the estate were initially sufficient to pay the executor's claims. The executor must now secure the return of assets in order to pay the claims if they are determined to be valid. In determining whether to authorize payment, the court must, of necessity, address the issue of the sufficiency of assets. That assessment is made within the context of the proceeding. The fact that there is an issue regarding availability of assets does not deprive the executor of standing to make an application under the statute. As the petition states a cause of action on its face, the motion to dismiss is denied (Camarda v Vanderbilt, 100 AD2d 836 [2d Dept 1984]).

Respondent further argues that, as a matter of law, the executor cannot recoup assets of the estate for payment of a personal claim which he failed to disclose prior to distribution of the estate. On this issue, the motion to dismiss is converted to a motion for summary judgment (CPLR 3211 [c]; Cenzon-DeCarlo v Mount Sinai Hosp., 101 AD3d 924 [2d Dept 2012]). The motion pertains only to the claims for repayment of loans which post-date September 23, 1993. The claims represented by checks dated prior to September 23, 1993 are barred by the statute of limitations, for the reasons set forth below.

SCPA 1805 (3) provides for suspension of the statute of limitations on the executor's claim, beginning with the date of death. The threshold question is whether the suspension applies where the statute of limitations expired prior to the death. Subdivision (3) provides that the statute of limitations is suspended "from the death of the decedent until the first judicial settlement of the account" of the executor. The original statute contained a clearer indication of [*3]intent: "the statute of limitations shall not be available as a defence [sic] to such debt or claim, provided the same shall be presented and claimed at the first accounting, and provided the same was not barred by statute, at the time of death of the testator or intestate" (L. 1868, c.594).

The suspension of the statute of limitations for the period after death does not affect the running of the statute prior to that time (O'Flynn v Powers, 136 NY 412 [1893]). Where the statute of limitations has expired prior to death, it may be raised as a defense against the executor's claim. In fact, the executor himself has a duty to reject a claim which is barred by the statute of limitations and has no authority to allow a time-barred claim (Matter of Skeele, 16 AD3d 1157 [4th Dept 2005]).

The statute of limitations for repayment of a loan is six years from the date the cause of action accrues (CPLR 213). The cause of action accrues on the date of the execution of each check (Matter of Loew, 38 Misc 3d 1206 [A] [Sur Ct, Nassau County 2012]). In this case, the statute limitations has expired on all checks executed before September 23, 1993. The motion to dismiss is granted as to the cause of action for repayment of loans which pre-date September 23, 1993.

Respondent contends that the executor failed to meet the statutory requirement that claims be presented prior to the first judicial settlement of the executor's account. It is alleged that the statement of assets provided by the executor is the equivalent of a a judicial accounting. A settlement on an informal accounting has the same effect as a decree on an accounting (Matter of Lifgren, 36 AD3d 1042 [3d Dept 2007]), but only where the executor obtains releases from the beneficiaries. More to the point, the statute pre-supposes a petition to judicially settle the accounts rather than an informal accounting, as a personal claim cannot be paid without court approval. Therefore, the statute of limitations has not expired on the checks which post-date September 23, 1993.

Respondent further argues that the claims are barred by the delay of twelve years in commencing this proceeding. The defense of laches does not operate as a bar to an action at law commenced within the period fixed by the statute of limitations (Columbus Trust Co. v Campolo, 110 AD2d 616 [2d Dept 1985], affd 66 NY2d 701 [1985]). However, the failure to expeditiously adjudicate a claim under SCPA 1805 will result in a denial of interest on the claim (Matter of Ludlam, 32 AD2d 48 [2d Dept 1969]).

The executor also seeks reimbursement for payment of administration expenses. SCPA 1805 pertains only to debts due from a decedent. Administration expenses are not debts of a decedent (Matter of Stiles, 126 Misc 715 [Sur Ct, Westchester County 1926]). The claim is therefore dismissed without prejudice to renew in a proper proceeding.

The claims for reimbursement for the expenses of the condominium are claims against the trust, not the estate. Petitioner took title to the condominium as a de facto trustee and there has been no judicial determination that the property is an asset of the estate. This claim is dismissed for failure to state a cause of action without prejudice to a claim against the trust for reimbursement.

Accordingly, the motion to dismiss the petition is granted as to: l) claims evidenced by checks dated prior to September 23, 1993; 2) claims relating to the expenses of the condominium; and 3) claims for reimbursement of administrative expenses. The parties may file additional submissions as to the claims which have been converted to a motion for summary [*4]judgment (Rovello v Orofino Realty Co., 40 NY2d 623 [1976]) not later than April 30, 2013 on which date the motion will be submitted for decision.

This is the decision and order of the court.

Dated: March 21, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court