Cite as: Estate of Rose Hamilton, 2013-991/A, NYLJ 1202640782559, at *1 (Surr., BX, Decided January 27, 2014)


Surrogate Nelida Malave-Gonzalez

Decided: January 27, 2014




In this estate, the administrator, who is also the fiduciary of the estate of the decedent's pre-deceased son, commenced this proceeding by order to show cause, seeking inter alia, an order: compelling the respondent bank (Capital One) to give the administrator access to a safe deposit box leased by the decedent from Capital One "without further delay" for the purposes of obtaining an inventory and removing contents; and, awarding the administrator's attorney legal fees and the costs incurred in commencing the proceeding, against Capital One and/or its branch manager. Although not clearly delineated, the petition in essence seeks SCPA 2103 turnover relief, and the court deems the petition to be such.

Letters of administration without any limitations issued to the administrator pursuant to a decree of the court dated June 6, 2013. The administration petition listed assets of $38,000, and as a result the "Certificate of Appointment of Administrator," an official form issued by the court, bears the following notation: "Limitations: These letters authorize the




collection of a total of $38,000. The collection in excess of that amount must be authorized by further order of the Surrogate."

The administrator avers that on August 6, 2013, she and her counsel went to the Capital One branch where the safe deposit box is located and attempted to gain access to the box, but were refused after the branch manager consulted with its legal department.

It appears that clarification of the administrator's authority with respect to examining and retrieving the safe deposit box contents is warranted so that she may proceed with the proper administration of this estate without delay. The oft-quoted maxim that a fiduciary "stands in the shoes of its decedent" is a good starting point in summarizing the authority of any fiduciary. Of course, an administrator is a fiduciary (SCPA 103). Under EPTL 11-1.1(b) (5) a fiduciary has the authority to take possession of any property owned by an estate, including a safe deposit box. The relationship of the lessor (the bank) and the lessee (the box renter) with respect to a safe deposit box is one of bailor/bailee and the relationship between the two is governed by the law of contracts, whether express or implied (see 9 NY Jur 2d Banks §281).

Against this backdrop it is clear that Capital One should permit access to the administrator for the purposes of identifying the contents of the box, since she "stands in the shoes of the decedent," and should allow the administrator to withdraw from the box property not exceeding the value of the limitations contained in her letters. On the return date of this application,




counsel for Capital One sought a court order directing access to the safe deposit box. Quite simply, as a decree issued granting letters of administration to the administrator with authority to collect up to $38,000 in assets, another court order is not necessary to permit the administrator to exercise her rights and responsibilities as a fiduciary. If that were so, duplicitous applications would waste the court's time and overly tax the court's limited resources.

Accordingly, this decision constitutes the interim order of the court directing Capital One to permit the administrator access to the safe deposit box within ten (10) days of this decision, and allow the removal of property valued at no more than $38,000. Further, insofar as Capital One has not had an opportunity to answer the petition, it is afforded until February 11, 2014 to serve and file answering papers and the administrator shall be afforded to February 25, 2014 to file any reply papers, at which time the matter shall be deemed submitted. As requested by the parties, a copy of this decision and interim order shall be electronically forwarded to respective counsel.

Proceed accordingly.