• Surrogate's Court, Suffolk County
  • 2010-969/D
  • Surrogate John M. Czygier, Jr.
  • For Plaintiff: Attorneys for Petitioner: Cullen and Dykman, LLP, New York, New York.


Cite as: Rafter, 2010-969/D, NYLJ 1202587226025, at *1 (Surr., SUF, Decided September 18, 2012)

Surrogate John M. Czygier, Jr.

Click here to see Judicial Profile

Decided: September 18, 2012


Attorneys for Petitioner: Cullen and Dykman, LLP, New York, New York.





This is a final accounting proceeding, filed in response to a compulsory accounting proceeding. The accounting covers the period March 6, 2010, through January 31, 2012. Petitioner is the executor of the estate, letters testamentary having issued to her on March 30, 2010. Petitioner seeks a decree (a) judicially settling her account; (b) directing that Kathryn Rafter, Susan Rafter and Anne J. Schmidt be directed to each refund to the estate the sum of $3,174.37 as set forth in Schedule J of the account; (c) approving the payment of legal fees in the amount shown; and (d)approving the advanced payment of certain executor's commissions, taken without court order, nunc pro tunc..

Jurisdiction has been obtained over all persons listed in the petition as necessary parties and no one has appeared in opposition hereto.

Since no objection has been raised thereto, petitioner's request for court approval of the amount of the commissions requested is approved. The court cannot, however, condone the petitioner's paying herself commissions without obtaining prior approval of the court pursuant to SCPA 2311. Such prepayment without court permission is the basis of automatic surcharge at the statutory rate of interest (see, Estate of Penn, NYLJ 1/13/99, at 1, col. 3; Matter of Crippen, 32 Misc2d 1019; Matter of Bosch, 201 Misc 890; Matter of Thron, 139 Misc2d 1045; Matter of Stalbe, 130 Misc2d 725). Accordingly, petitioner is surcharged interest at the rate of nine percent per annum on the sum of $20,000.00 paid on July 7, 2011, interest to run until the date of the decree to be signed herein (CPLR 5004).

In all other respects, there being no opposition thereto, the petition for judicial settlement and all remaining incidental relief sought therein is granted.




Submit decree.

See Full Text Opinion