In this proceeding pursuant to SCPA 2103 respondent moves to dismiss (CPLR 3211).

This proceeding was commenced by the "limited trustee" of a trust created under the last will and testament of Linda Schleger, for information concerning the disposition of proceeds which resulted from the sale of real property which was an asset of the estate. Respondent is the spouse of Stanley Schleger who was the deceased executor of the estate. There does not appear to have been any accounting by Stanley Schleger as executor of the estate nor is there any record in this court of a petition for probate or administration of his estate.

The last will and testament of Linda Schleger was admitted to probate by a decree of this court dated April 24, 1995. Letters testamentary issued to decedent's husband Stanley Schleger. Artilcle " Fourth" of the will created a trust for the benefit of the spouse. Letters of trusteeship issued to Ross Fingold, who states in his affidavit that the trust was never funded. Petitioner alleges that certain real property or the proceeds of the sale thereof (and possibly other property) should have been applied to fund the trust. This allegation is disputed by respondent, who seeks to hold this proceeding in abeyance pending the commencement of a proceeding for construction of the will.

It is undisputed by the parties to the instant proceeding that the executor sold the real property in his fiduciary capacity and took personal possession of the proceeds. The petition seeks information relating to disposition of the proceeds. In addition, the petition seeks a wide [*2]range of financial information relating to the administration of the estate.

Respondent seeks to dismiss the petition on the grounds that it is barred by the statute of limitations and general release and that the documentary evidence establishes that the real property was devised to Stanley Schleger.

Petitioner advances two arguments with respect to the statute of limitations: l) that the executor openly repudiated his obligations as executor by assuming ownership of the proceeds of sale and that the statute of limitations precludes a proceeding against him for self-dealing and misappropriation of estate assets and 2) that the statutes of limitation for fraud and conversion have expired.

As petitioner notes, this is not a proceeding to recover assets based upon fraud or conversion but rather a proceeding for disclosure of information, as to which the statute of limitations cannot generally be raised as a defense (Matter of Laflin, 128 Misc 2d 348 [Sur Ct, Nassau County 1985]). However, respondent is not the proper person from whom the petitioner should seek disclosure of the decedent's financial documents or records relating to the administration of the estate. The documents should be turned over to the fiduciary of the deceased executor when a fiduciary is appointed. It is obvious that the appropriate context in which to obtain information relating to the assets of an estate is an accounting proceeding. Specifically with respect to the real property, there is no foundation for tracing the disposition of the proceeds of sale until it is determined that the real property was wrongfully appropriated in the first instance.

As to the underlying claim of self-dealing, an accounting proceeding is the proper vehicle for addressing a charge that an executor failed to fund a testamentary trust (Matter of Kassan, 1996 WL 34571315[Sur Ct, Nassau County 1996]) and/or misappropriated assets of the estate.

The necessity of making the estate a party to this dispute is not avoided by commencing a proceeding to obtain information from respondent, as is apparent from the issues raised on the motion to dismiss. Respondent is not answerable for the administration of the estate nor is she the proper party to raise the defenses of the statute of limitations and release on behalf of the executor. These defenses should be raised in opposition to a petition to compel the fiduciary of the deceased executor to settle his accounts.

The question of construction of the last will and testament can be addressed in the accounting proceeding or in a separate proceeding (SCPA 1420) preliminary to an accounting proceeding, on notice to a fiduciary of the estate of Stanley Schleger.

Respondent has not made clear whether there is an instrument purporting to be the last will and testament of Stanley Schleger and whether decedent was domiciled in the state of Florida. That information should be furnished at a conference which will appear on the court's calendar on March 13, 2014 at 10:00 a.m.

The SCPA 2103 proceeding and the motion to dismiss related thereto are

held in abeyance pending further order of the court.

This is the decision and order of the court.

Proceed accordingly.

Dated: February 28, 2014

EDWARD W. McCARTY III [*3]

Judge of the

Surrogate's Court