| Matter of LaVacca |
| 2013 NY Slip Op 50922(U) [39 Misc 3d 1238(A)] |
| Decided on June 11, 2013 |
| Sur Ct, Dutchess County |
| Pagones, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Matter of the
Petition of THOMAS LAVACCA as Administrator of the Estate of Richard Paul
LaVacca, Pursuant to SCPA §2107 for an Order for the Sale of the Real Property of
the Said Decedent for Purposes of Distribution and Satisfaction of Liens.
|
The administrator has filed a verified petition pursuant to SCPA §2107(2) requesting the Court's advice and direction as follows.
The decedent died intestate on January 8, 2013. Petitioner was appointed administrator by decree, dated March 15, 2013. The estate primarily consists of two (2) pieces of real property: the decedent's residence located at 8 Ferris Lane, Poughkeepsie, New York and commercial real property located at 85 Main Street, Poughkeepsie, New York upon which he formerly operated a restaurant known as Spanky's. The commercial property is owned by RLWS, Inc. of which the decedent was the sole shareholder.
On October 31, 2012, the decedent, through his corporation, entered into a contract to sell the commercial property, restaurant and its assets for the purchase price of $275,000.00. The terms of the contract provide for a $25,000.00 down payment, with the balance of the purchase price to consist of a $250,000.00 purchase money note and mortgage. The decedent died before a title closing could occur.
During the pendency of the contract and scheduling a title closing, the purchaser obtained a title and lien search. It revealed a variety of tax liens and judgments which have either become liens on the commercial property or will be debts of the estate. They total $68,322.46, plus accruing penalties, costs and interest. In addition, there is a recorded judgment against Robert LaVacca, a distributee of the decedent, in the sum of $177,719.21, plus accruing interest.
The record further indicates that the decedent's former residence at 8 Ferris Lane, Poughkeepsie, New York is encumbered by two (2) mortgages, the combined balance of which exceed its current market value.
Petitioner asks the Court for an order: 1) setting aside the liens so that the
commercial property can be sold; 2) directing the administrator to retain the sale
proceeds after paying the closing costs and expenses; and, 3) upon filing his final
accounting, directing payment of the debts of the estate in the amounts the court
determines are sufficient, along with payment of all administration expenses (Petition,
WHEREFORE clause).
Petitioner is asking this Court to substitute its judgment for his. The Court declines to do so in its discretion. The record does not demonstrate the required "extraordinary circumstances" to warrant the relief requested. (Matter of Lovell, 23 AD3d 386 [2d Dept. 2005].) Petitioner must exercise the prudence and judgment required of his office. (Matter of Boyer, 35 Misc 3d 1233A, 2012 Misc. LEXIS 2581 [Sur Ct Dutchess Co. 2012]; Turano and Radigan, New York Estate Administration, 2013 ed., §12.06.)
Estates, Powers and Trusts Law §11-1.1 sets forth broad powers which enable a fiduciary to administer an estate. The court is loath to substitute its judgment for those of petitioner. (Turano and Radigan, New York Estate Administration, supra, at §12.06.) Surrogate's Court Procedure Act §1811 also provides guidance on which claims to pay first. [*2]
The foregoing constitutes the decision and order
of the Court.
Dated:Poughkeepsie, New York
June 11, 2013
ENTER
HON. JAMES D. PAGONES, S.C.J.