Matter of Marion

Surrogate's Court, Nassau County

Decided on April 10, 2026

File No. 2023-3068/B

David P. Sullivan, J.

In this probate proceeding, the petitioner, Vicki E. Aronoff (Vicki), seeks preliminary letters testamentary. The application for preliminary letters is opposed by the objectants, Jerrod LaFonte (Jerrod), Dina LaFonte (Dina) and Nadyne Marion-Durnin (Nadyne). For the reasons that follow, the application for preliminary letters testamentary is GRANTED.

BACKGROUND

The decedent, Seth T. Marion (the decedent), died on September 15, 2022 leaving a purported will dated July 22, 2022 (the Will). The decedent was survived by his sisters, Vicki and Nadyne, and by Jerrod and Dina, the children of his pre-deceased sister. The Will nominates Vicki as executor and bequeaths decedent's entire estate to Vicki, if she survives the decedent.

By petition verified on January 14, 2023, Vicki offered the Will for probate. Objections to probate have been filed by Nadyne, Jerrod and Dina. The objections assert: (i) that the Will was not properly executed in accordance with the statutory formalities; (ii) that the decedent lacked testamentary capacity; and (iii) that the Will was the product of undue influence.

By petition verified on November 7, 2025, Vicki applied for preliminary letters on the [*2]basis that authority is needed to negotiate a settlement in a pending Supreme Court, Suffolk County action (the Supreme Court Action). The application for the issuance of preliminary letters is opposed by Jerrod, Dina and Nadyne on the basis that Vicki "is not a suitable or qualified fiduciary under SCPA 707, and [the] issuance of preliminary letters to her would jeopardize the proper administration of the Estate." More particularly, they assert that issues have been raised regarding the due execution of the will and the circumstances surrounding its preparation and signing and that Vicki "may have been involved or influenced in the execution process." Jerrod, Dina and Nadyne further assert that there was an earlier will naming them as fiduciaries and that the naming of Vicki as executor is a sudden and unexplained change to the decedent's testamentary scheme. They also allege that preliminary letters should not issue to Vicki because her conduct after the decedent's death was "suspicious" and "secretive."

In addition, Jerrod, Dina and Nadyne assert that Vicki has a conflict of interest because she is "an adverse party or effectively an adverse party through her insurance carrier" in the Supreme Court Action. They allege that this conflict makes it impossible for Vicki to act with the undivided loyalty owed by a fiduciary to the estate. Lastly, Jerrod, Dina and Nadyne assert that there have been two separate foreclosure proceedings filed against properties owned by Vicki and that the decedent is named as a defendant in one of those foreclosure proceedings.

ANALYSIS

SCPA 1412, which governs the issuance of preliminary letters testamentary, was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate. The purpose of SCPA 1412 is to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests (Matter of Hubbard, NYLJ, Aug. 25, 1997, at 30, col 2 [Sur Ct, Bronx County 1997]; Matter of Roth, NYLJ, Sept. 16, 1999, at 35, col 2 [Sur Ct, Kings County 1999]; McKinney's Cons. Laws of New York, Ann. Vol. 58A, Sec. 1412, Practice Commentaries, p. 344). Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest (see, e.g., Matter of Smith, 71 Misc 2d 248 [Sur Ct, Erie County 1972]; Matter of Bayley, 72 Misc 2d 312 [Sur Ct, Suffolk County 1972], affd 40 AD2d 843 [2d Dept 1972], appeal dismissed, 31 NY2d 1025 [1973]). "Moreover, the clear thrust of SCPA 1412 is to honor the testatrix' [sic] wishes with regard to the appointment of a fiduciary for her estate, even on a temporary basis, and to reduce the possibility of spurious pre-probate contests" (Matter of Hubbard, NYLJ, Aug. 25, 1997, at 30, col 2 [Sur Ct, Bronx County 1997]).

A testator's wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing (Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6 [Sur Ct, Nassau County 2001] ; Matter of Schill, NYLJ, Mar. 15, 2000, at 30, col 2 [Sur Ct, Nassau County 2000]; Matter of Fordham, NYLJ, Dec. 16, 1998, at 23, col 3 [Sur Ct, Bronx County 1998]; Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 35 [Sur Ct, Kings County 1997]). Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue (Matter of Bayley, 72 Misc 2d 312 [Sur Ct, Suffolk County 1972], affd 40 AD2d 843 [2d Dept 1972], appeal dismissed, 31 NY2d 1025 [1973]). Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible under SCPA 707 (Matter of Roth, NYLJ, [*3]Sept. 16, 1999, at 35, col 2 [Sur Ct, Kings County 1999]; Matter of Scamardella, NYLJ, June 3, 1996, at 32, col 4 [Sur Ct, Richmond County 1996]). Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters (Matter of Vermilye, 101 AD2d 865 [2d Dept 1984]; Matter of Rella, NYLJ, Mar. 16, 1999, at 28, col 5 [Sur Ct, Westchester County 1999]; Matter of Nigro, NYLJ, Feb. 3, 2003, at 23, col 3 [Sur Ct, Kings County 2003]). Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator (Matter of Cavallo, NYLJ, Dec. 21, 2001, at 25, col 2 [Sur Ct, Richmond County 2001]; Matter of Smith, 71 Misc 2d 248 [Sur Ct, Erie County 1972]).

As the Surrogate in Matter of Scott (2022 NY Slip Op 30730[U][Sur Ct, Bronx County 2020] stated:

"The party alleging that the fiduciary is ineligible to serve bears the burden of proof in this regard (see Matter of Marriott, NYLJ, October 10, 2017 at page 32 [Sur Ct, Albany County]). Preliminary letters should be denied to a nominated fiduciary sparingly, and only where there is a clear and strong showing of serious misconduct or wrongdoing that endangers the safety of the estate (see Matter of Israel, 64 Misc 2d 1035, 315 N.Y.S. 2d [Sur Ct, Nassau County 1970]). "

Here, the objections to Vicki's appointment as preliminary executor are conclusory assertions that do not rise to the bona fide, clear and strong showing that is required to demonstrate a likelihood of serious misconduct or wrongdoing that endangers the safety of the estate. Jerrod, Dina and Nadyne, on the state of the record, have not met their substantial burden of proving, with competent evidence, that Vicki is unfit to receive preliminary letters. The court will not allow their opposition to preliminary letters to create a contest within a contest (Matter of Fordham, NYLJ Dec. 16, 1998 at page 23, col 3 [Sur Ct, Bronx County 1998]).

Nevertheless, the court is mindful that "[a] fiduciary in a position of conflict of interest must be particularly scrupulous in satisfying her duty of undivided loyalty" (Matter of Pollack, NYLJ, May 10, 1999 at page 25, col 3 [Sur Ct, Westchester County 1999]). A "mere possible conflict of interest" is not sufficient to deviate from the testator's preferred choice of a fiduciary (Id). It is actual misconduct, not a possible conflict of interest, that justifies the denial or removal of a fiduciary (Id). Jerrod, Dina and Nadyne have failed to sufficiently establish a conflict of interest.

"Even if the court is limited in its response to objections to the appointment of a preliminary executor, it has the broadest discretion in fashioning appropriate limitations on the grant" (Matter of Roth, NYLJ, Sept. 16, 1999, at 35, col 2 [Sur Ct, Kings County 1999]), including the posting of a bond. The Will does not specifically dispense with a bond with respect to a preliminary executor. Accordingly, in view of the failure of the Will to specifically dispense with a bond for a preliminary executor and to protect the estate, Vicki shall be required to post a bond in the amount of $887,753.34.

Preliminary letters testamentary shall issue to Vicki E. Aronoff upon her duly qualifying under the law to serve and upon posting of a bond.

Settle order.

This constitutes the decision and order of the court.

Dated: April 10, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court