Cite as: Ledingham, 557A2008/A/B, NYLJ 1202589069250, at *1 (Surr., SUF, Decided October 22, 2012)

Surrogate John M. Czygier

 

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Decided: October 22, 2012

ATTORNEYS

Attorneys for Petitioner: Donald Novick, Esq., Huntington, New York.

Attorneys for Objectants: By: Steven D. Prager, Esq., Krieger & Prager, LLP, New York, New York.

Attorneys for Objectants: By: Bridget LaRosa, Esq., Fox Rothschild, LLP, New York, New York.

Guardian ad Litem: Kurt P. Widmaier, Esq., Hauppauge, New York.

Attorney General of the State of New York: By: Deborah Yarchuk McCarthy, Esq., Eric T. Schneiderman, New York, New York.

Public Administrator of Suffolk County, Riverhead, New York.

DECISION

 

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In this contested accounting proceeding the petitioner seeks judicial settlement of his final account; the issuance of full letters of administration; approval of the additional expenses of his office in the amount of $5,098.84, pursuant to SCPA 1207(4); the fixing and approval of counsel fees in the sum of $50,000, plus disbursements in the amount of $1,420; the retention of $350 for the preparation and payment of 2011 income taxes; and that the remaining assets of the estate, plus accrued interest after the payment of administration expenses pertaining thereto, be paid to the New York State Comptroller for the benefit of the unknown distributees of the decedent herein who may be entitled thereto.

Jurisdiction has been obtained over the necessary parties to this proceeding. Objections have been filed on behalf of the alleged distributees of captioned decedent. A guardian ad litem was appointed to represent unknown distributees. He has since filed his report, as supplemented, and recommends that the court judicially settle the account and find objectants have carried their burden of proof, establishing that they are entitled to

 

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their respective distributive shares as subject decedent's sole surviving distributees, with one exception that will be addressed infra.

The record reflects that the decedent died on September 22, 2002. Letters of temporary administration issued to the Public Administrator on September 12, 2008. Thereafter, by decision/order dated October 7, 2011, probate was denied to certain purported testamentary instruments on file with this court. During the administration of the estate, attempts had been made to ascertain whether there may have been any distributees whose whereabouts were unknown. Upon the receipt of objections to petitioner's final account, the matter was placed on the calendar and a kinship hearing was held before a court attorney-referee, pursuant to a stipulation that waived the filing of a report and agreed to have the court render its decision based upon the testimony and exhibits received in evidence together with all of the previously filed pertinent papers.

At the hearing, objectants' counsel introduced testimony from claimant, Ginger Rogers Poutous, who testified to her relationship and that of her siblings to the decedent; and that the decedent died without a spouse or issue, based upon her own knowledge and upon conversations with family members at various family gatherings. In addition, counsel introduced into evidence documentary exhibits regarding the decedent's family, including birth, death, probate and marriage records.

Based upon an in-depth review of the filed papers, the testimony elicited at the hearing, the documents received into evidence, as well as the report(s) of the guardian ad litem, the court concludes that Ginger Rogers Poutous (niece), Donald Rogers (nephew), Frank Florian Mazurek (grandnephew), John Louis Mazurek (grandnephew), and Lillian Ledingham Donohue (niece) are captioned decedent's sole surviving distributees. With respect to Daniel Joseph Mazurek, who was decedent's grandnephew, he post-deceased this decedent. However, there is insufficient evidence to establish that he died unmarried and without issue. Therefore, as noted by the guardian ad litem, Daniel Joseph Mazurek's unknown distributees are potential distributees interested in captioned decedent's estate. In the absence of

 

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further proof with respect thereto, assets attributable to his share should be distributed to the New York State Comptroller on his behalf.

The court notes that there remain outstanding objections from the Attorney General's Office to petitioner's counsel's legal fees.

In consideration of these findings, the guardian ad litem shall continue as the representative of unknown distributee(s); to wit, the heirs of Daniel Joseph Mazurek pending a final determination herein.

Further, counsel for the parties shall appear for conference at the Surrogate's Court on Thursday, November 1, 2012 at 9:30 a.m., or advise the court in writing that they consent to the court making a determination on the issue of legal fees on the papers submitted.

The foregoing decision constitutes the order of this court.