This Court appointed attorney Donald Cappillino to hear and report his findings of fact and conclusions of law pursuant to SCPA §506(1), by order dated March 29, 2013, on all issues relating to an accounting filed by attorney Stephen P. O'Hare as Executor of the estate of Katrin V. Warfield ("decedent").

The referee filed his report on July 8, 2013, along with the transcript of the hearing and the exhibits to be considered. The referee's findings of fact are summarized as follows:

1. The executor has not filed the final (2007) income tax returns for the decedent.

2. The executor has not properly investigated whether tax returns for the decedent for prior years are required.

3. The executor failed to require his father, also an attorney, to properly account for his actions as the decedent's attorney-in-fact, particularly with respect to the loss of over one million dollars in stock investments managed by his uncle (his father's brother) when the decedent was approximately eighty-five (85) years old and in a diminished physical and mental condition.

4. The executor did not require his father to properly account for his actions as the decedent's attorney-in-fact in hiring relatives who were paid in excess of $280,000.00 to provide home health care for the decedent.

5. The executor improperly engaged in self-dealing when he contracted with his attorney father to sell the decedent's real estate.

6. The executor failed to fully and properly account for the contents of the decedent's safe deposit box at the Bank of Millbrook.

7. The executor failed to charge at least minimal rent to one of his nieces whom he permitted to live rent-free at the "cottage" at decedent's premise, from August, 2008 to May, 2010.

8. The executor, an attorney, failed to adequately document his time expended in rendering legal services to the estate, nor did he address the factors set forth in Matter of Freeman, 34 [*2]NY2d 1, 9 (1974).

9. The executor failed to adequately demonstrate that his father, the draftsman of the decedent's will in 2004 that appointed him the executor, was not an affiliated attorney with him in 2004.

10. The executor should be promptly removed, letters testamentary revoked and an Administrator C.T.A. appointed, as there has been a clear showing of serious misconduct that endangers the safety of the estate. (Matter of Vermilye, 101 AD2d 865 [2d Dept. 1984].)

The referee has filed an itemized affirmation of services. The order of reference, dated March 29, 2013, fixed the referee's billable hourly rate at $250.00 per hour. The rate is commensurate with what trusts and estates attorneys in Dutchess County currently charge. The referee is a well-respected and experienced trusts and estates attorney. This contested accounting presented unique and challenging issues for his consideration. The referee did not submit a separate bill for any disbursements he advanced. The Court determines that the referee's fee request of $19,075.00 is fair and reasonable.

This Court, on its own initiative pursuant to SCPA §506(4), ratifies and confirms in its entirety the report of the referee, dated July 3, 2013 and filed July 8, 2013.

Attorney Stephen P. O'Hare is removed as executor and letters testamentary are revoked, effective immediately. (Matter of Duke, 87 NY2d 465, 473 [1996], Matter of Vermilye, supra., Matter of Israel, 64 Misc 2d 1035, 1043 [Sur Ct Nassau Co 1970].)

Attorney Michelle F. Rider, C.P.A., Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, One Corwin Court, P.O. Box 1479, Newburgh, New York 12550, (845) 565-1100, is appointed Administrator C.T.A. upon properly qualifying for such office. The posting of a bond is waived. In addition to the fiduciary powers authorized by EPTL §11-1.1, the Administrator C.T.A. shall be permitted to retain counsel, an independent accountant and such other advisors as may be deemed necessary and appropriate to carry out her duties and responsibilities. The compensation for such counsel, accountant and advisors are subject to approval by this Court.

The referee's fee request of $19,075.00 is approved. The executor, Stephen P. O'Hare, previously remitted $2,000.00 to the referee pursuant to the order of reference. The balance of the referee's fee, namely $17,075.00, shall be the sole and personal responsibility of Stephen P. O'Hare. No estate funds shall be used to satisfy this directive. Stephen P. O'Hare is directed to remit the sum of $17,075.00 to the referee within fifteen (15) days of the date of this decree, and the referee shall have judgment therefore.

The foregoing constitutes the decision and decree of the Court. [*3]

Dated:Poughkeepsie, New York

July 19, 2013

ENTER

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