By order to show cause, John Terzani, Sr. and his wife Beverly Terzani move for an order, pursuant to SCPA §711, revoking the limited letters of administration issued to Laura Terzani (hereinafter "Laura"), the decedent's wife, on December 20, 2013. Movants also seek to be issued limited letters of administration, authorizing them to file a wrongful death action.

In support of their order to show cause, the movants offer the affidavit of John Terzani, Sr., wherein he recounts the alleged history between his now deceased son and the temporary administratrix, Laura. The facts of this case are both compelling and chilling, wherein a forty year old man lost his life. Mr. Terzani, Sr. states that before August 20, 2013, "John, was aware that his wife had been unfaithful during the last year of their marriage, had posted photos of herself and several men on Facebook, had moved from the marital residence and was living with another man in Danbury, Connecticut." Mr. Terzani, Sr. indicates that this marital strife had caused his son John significant emotional turmoil. Additionally, Mr. Terzani, Sr. alleges that the marital discord was exacerbated by Laura allegedly amassing credit card debt. Both John and Laura had retained counsel to handle their impending divorce, with Laura's [*2]counsel preparing a proposed separation agreement (see Exhibit "3"). Mr. Terzani, Sr. stated that the day before John died, Laura went to the marital residence and quarreled with his son over the alleged debt she had accrued. John became distraught, took a weapon from the home and entered the woods near the marital home. Police arrived at the scene shortly after 6:19 p.m. responding to a call made by Laura which indicated that she thought John was going to harm himself. The police established a perimeter around the wooded area near the marital residence and a lengthy stand-off ensued. The culmination of this tragic set of facts occurred near 2:30 a.m., when John was shot by police and eventually pronounced dead at Saint Francis Hospital.

Movants' counsel has filed a Notice of Claim against the New York State Police, and wrote Laura advising her of the movants' intent to sue, and requesting a signed waiver to allow them to obtain limited letters of administration authorizing a wrongful death action to be filed on behalf of John's estate. In response, attorney Carl Wolfson indicated that he had been retained by Laura and that she did not wish to sign a waiver or file a wrongful death suit on behalf of her husband's estate. Movants' counsel alleges that to his knowledge, Laura has taken no action to pursue vindication of the estate's rights.Surrogate's Court has jurisdiction to require executors and administrators to perform their duties and to remove them for failure to do so (see In Re Halstead's Will, 28 Misc 2d 996 [Sur Ct, Suffolk County 1961]). However, the Surrogate has no power to remove an administrator for dereliction of duty or hostility of interest where the facts are disputed, without first making findings of fact and conclusions of law (see Matter of Greenway, 241 AD2d 735 [3rd Dept 1997]; In re McDonald's Estate, 160 AD 86 [1st Dept 1914], affirmed 211 NY 272 reargument denied 212 NY 552). Here, the movants are alleging that Laura has been remiss in her duties by failing to proceed with the wrongful death action on behalf of the estate of their son John. Contrary to this assertion, Laura indicates that after consulting with various attorneys and spending a "good amount of time and effort soul searching" she decided not to file a notice of claim nor go forward with the wrongful death action. Accordingly, this Court is required to proceed to a hearing, wherein it will make findings of fact and conclusions of law concerning: (1) whether or not Laura has been delinquent in [*3]her duties as temporary administratrix by failing to proceed with the wrongful death action; and, (2) whether or not the alleged hostility of interest prevents her from acting in good faith in her role as temporary administratrix.

Accordingly, the parties and their attorneys are directed to appear for a hearing on July 31, 2014 at 10:30 a.m. to determine whether or not Laura should be removed as temporary administratrix. Adjournments are only granted with leave of the Court.

The foregoing constitutes the decision and order of the Court.

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