In connection with a petition to compel an account, petitioner has filed a motion to revoke letters of administration and issue new letters.

Sabato A. Stile, Sr. (the "decedent") died intestate on June 26, 2010, a resident of Nassau County, survived by four distributees: Sabato Anthony Stile, Jr., Marie Schwartz, Tammy Rolon and Nancy Havey ("Sabato, Jr.," "Marie," "Tammy," and "Nancy"). Letters of administration issued to Marie on April 13, 2011.

Decedent owned a one-family home located at 277 Doughty Boulevard, Inwood, New York ("decedent's home"). Decedent's home, which had been occupied by decedent as well as Nancy and her family prior to decedent's death, is the estate's primary asset. On November 4, 2010, after decedent's death but before letters issued, all four of the distributees executed an agreement (the "occupancy agreement") which allowed Nancy to continue to occupy decedent's home for a period of 22 months, terminating on June 30, 2012. During the period of the occupancy agreement, Nancy was to pay all carrying charges. At the conclusion of the occupancy agreement period, Nancy had an option to purchase decedent's home at a price to be fixed by an independent appraiser. In the alternative, she was required to vacate the premises. Although the occupancy agreement by its terms ended nearly two years ago, Nancy remains in decedent's home without exercising her option to purchase it and without paying rent.

Eighteen months after decedent's death, Sabato, Jr. died on November 29, 2011. His widow, Lorraine Avellino ("Lorraine"), was appointed by this court on January 30, 2012 as administrator of Sabato, Jr.'s estate. In her capacity as the administrator of the estate of a post-[*2]deceased distributee, Lorraine brought a petition to compel Marie to account and the present motion to revoke the letters issued to Marie. She has also repeatedly asked Marie to evict Nancy from decedent's home, sell the house and distribute the proceeds equally among the four distributees, but Marie has not complied with these requests. The only other distributee, Tammy, has raised no objections to her sister Marie's services as administrator or to her sister Nancy remaining in decedent's home beyond the term of the occupancy agreement.

This court issued an order on August 28, 2013 (Dec. No. 29112) directing Marie to file an account and petition for its judicial settlement and to cause citation to issue on or before November 7, 2013. No account was filed by that date. Indeed, despite subsequent multiple court conferences and repeated assurances by Marie's counsel that an account would be filed, no account has been filed by Marie as of this date.

Lorraine has now brought this motion asking the court to: (1) revoke the letters issued to Marie; (2) issue new letters to Lorraine; (3) assess any loss of income to the estate against Marie for her failure to demand and collect rent on decedent's home; and (4) award counsel fees to Lorraine.

Instead of filing an account as directed by the court, Marie filed "objections" to Lorraine's motion and raised the following six "affirmative defenses": (1) Marie has performed all of her required duties; (2) Marie has the power to grant occupancy of decedent's home to Nancy until the estate administration is closed, and Nancy has no obligation to pay rent in addition to paying the carrying charges pursuant to the occupancy agreement; (3) attorneys' fees should not be awarded to Lorraine; (4) Lorraine's claim is barred by the doctrine of unclean hands; (5) Lorraine's claim is barred by the doctrine of laches; and (6) Lorraine is estopped from asserting her claims.

SCPA 711 provides the bases for the suspension, modification or revocation of letters or the removal of a fiduciary for disqualification or misconduct. The decision to suspend or remove a fiduciary lies in the discretion of the Surrogate (SCPA 713; Matter of Simon, 44 AD2d 570 [2d Dept 1974]). The burden is on the party seeking to remove the fiduciary and clear and convincing evidence of misconduct must be presented (see Matter of Krom, 86 AD2d 609 [3d Dept 1982]; Warren's Heaton on Surrogate's Court Practice §117.05 [7th ed]).

Revocation of letters is a drastic step utilized infrequently, often when the fiduciary substantially impedes the administrative process or jeopardizes estate assets (see Matter of Braloff, 3 AD2d 912 [2d Dept 1957], affd 4 NY2d 847 [1958]). In order for Marie's actions to serve as the basis for her removal as administrator, the court must be convinced that the estate assets in her control might be endangered (Matter of Martin, 16 AD2d 807 [2d Dept 1962]). Marie's actions, while troubling, are not those "from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the [fiduciary]" (id. at 807). "Indeed, it is only in the rarest of instances that removal will be ordered without a hearing" (Warren's Heaton on Surrogate's Court Practice §117.05 [7th ed]).

At the same time, this court can not allow Marie to continue to impede the timely administration of this estate. In addition to Marie's refusal to evict Nancy and sell the decedent's home, Lorraine has also asked the court to assess any loss of income to the estate against Marie for her failure to demand and collect rent on the home. Lorraine also seeks counsel fees. Marie [*3]insists, incorrectly, that she has the power to grant occupancy of the home to Nancy while denying Lorraine, as executor of the estate of Sabato, Jr., her equal share of the estate assets.

An application to revoke letters generally takes the form of a new proceeding, rather than a motion, although a fiduciary can be removed in the context of an accounting proceeding (2-33 Warren's Heaton on Surrogate's Court Practice § 33.10 [2] [a] [2014]). "Often, absent clear evidence of imminent harm to the estate, the court will defer a proceeding for revocation of letters until the accounting" (id.).

As noted above, this court directed Marie to file an account almost one year ago, but she failed to comply. In response to the present motion, Marie filed "objections" raising "affirmative defenses." The court has reviewed these objections and defenses and finds them to be without merit. Further, they are unresponsive to the court's order to account.

Accordingly, the court will grant Marie 14 days from the date of this decision in which to file her judicial account along with a petition for its settlement, a citation and the appropriate fee. The balance of the relief sought by movant, assessing any loss of income for failure to rent decedent's home and an award of counsel fees, may be raised in the context of the accounting proceeding.

The court reminds the administrator that she is in default of this court's prior order to account, which is sufficient grounds to revoke her letters. If Marie fails to file her account within 14 days, then the court will immediately revoke the letters of administration issued to Marie. The court will not grant any further extensions of time in which the account may be filed.

This constitutes the decision and order of the court.

Surrogate's Court