WHO CANNOT BE A FIDUCIARY UNDER SURROGATE'S COURT PROCEDURE ACT

If you are "dishonest", you are not eligible. According to SCPA 701:

"Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows:

1. Persons ineligible

(a) an infant

(b) an incompetent

(c) a non-domiciliary alien except one who is a foreign guardian as provided in subdivision four of section one thousand seven hundred sixteen of this chapter, or one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state.  Any appointment of a non-domiciliary alien fiduciary or a New York resident fiduciary hereunder shall be made by the court in its discretion

(d) a felon

(e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.

2. Persons ineligible in court's discretion.  The court may declare ineligible to act as fiduciary a person unable to read and write the English language."

MATTER OF CENTNER, 2018 NY Slip Op 32664 - NY: Surrogate's Court, Richmond 2018:

"Petitioner further argues that the Respondent is ineligible to serve based on SCPA § 707(1)(e). SCPA § 707(1)(e) states "Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows: Persons ineligible . . . One who does not possess the qualifications required by a fiduciary by reason of substance, abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office." Petitioner has provided transcripts of the divorce proceedings, and statements from the Respondent in an effort to demonstrate the "dishonesty" that Respondent has shown. Petitioner alleges that Respondent stole an excessive amount of funds from the marital joint account while Decedent was suffering from cancer. Furthermore, Petitioner argues that Respondent delayed the divorce proceeding in order to ensure that the Decedent would die as his wife, which would result in her estate passing to the Respondent. Respondent objected to the inclusion of such evidence, and argues that all allegations of dishonesty are based upon purported excerpts of uncertified transcripts from the divorce proceeding. Respondent heavily objects to the introduction of any of the material or documents from the divorce proceeding because the Petitioner has no legal right to access the contents of the sealed file.

Respondent brings a cross-petition to disqualify the Petitioner from acting as fiduciary pursuant to SCPA 707(1)(e), also on the ground of dishonesty. Respondent's argument is based upon Petitioner's prior sworn petition with this Court along with photographic evidence of the Petitioner and her siblings removing Decedent's personal property from the marital home.

"The dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor." Matter of Latham's Will 145 App Div. 849. A mere isolated act of wrongdoing is not enough to disqualify a fiduciary for dishonesty. The documentation currently before the Court, presented by both sides, is not enough to make a determination on the matter without first going through the formal channels of conducting a hearing. Estate of Marie Starace Knee, 2015 NYLJ Lexis 3597."

FORECLOSURE - WHEN DEATH DID NOT TOLL THE STATUTE OF LIMITATIONS

U.S. Bank, N.A. v Kess, 2018 NY Slip Op 01498, Decided on March 7, 2018, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action on February 2, 2015, against, among others, the defendant Philip Kess, individually and on behalf of the estate of Winifred Kess. Kess moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him, individually and in his representative capacity, on the ground that the six-year statute of limitations had run. In support of the motion, he submitted, among other things, the complaint in a prior action commenced by the plaintiff in May 2008 to foreclose the same mortgage (hereinafter the 2008 foreclosure action), in which the plaintiff elected to call due the entire amount secured by the mortgage, and proof that the 2008 foreclosure action was voluntarily discontinued by the plaintiff in October 2014. The plaintiff opposed the motion, arguing that the statute of limitations was tolled for 18 months pursuant to CPLR 210(b) by the June 4, 2013 death of Kess's wife, who was named as a defendant in the 2008 foreclosure action. In the order appealed from, the Supreme Court denied that branch of Kess's motion, finding that the death of Kess's wife tolled the statute of limitations for 18 months, thereby making the instant action timely.

In support of his motion, Kess demonstrated that the six-year statute of limitations (see CPLR 213[4]) began to run on May 6, 2008, when the plaintiff accelerated the mortgage debt and commenced the 2008 foreclosure action (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476; Deutsche Bank Natl. Trust Co. v Gambino, 153 AD3d 1232, 1233; U.S. Bank N.A. v Martin, 144 AD3d 891, 892; EMC Mtge. Corp. v Smith, 18 AD3d 602, 603). Since the plaintiff did not commence the instant foreclosure action until more than six years later, Kess sustained his initial burden of demonstrating, prima facie, that this action was untimely (see U.S. Bank N.A. v Martin, 144 AD3d at 892; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611). The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a [*2]question of fact as to whether the action was timely (see U.S. Bank N.A. v Martin, 144 AD3d at 892; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d at 611).

Contrary to the Supreme Court's determination, the plaintiff failed to establish that the action was timely or to raise a question of fact with respect thereto. CPLR 210(b) provides that "[t]he period of eighteen months after the death . . . of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his [or her] executor or administrator." The statute plainly is limited in scope to the executor or administrator of the decedent's estate and does not extend to other defendants in the same action (see Laurenti v Teatom, 210 AD2d 300, 301; Anselmo v Copertino 134 Misc 2d 956 [Sup Ct, Suffolk County]). Consequently, CPLR 210(b) could not extend the statute of limitations period as to Kess individually. Furthermore, the plaintiff failed to establish that Kess was the administrator or executor of his deceased wife's estate, a point which Kess denied in reply to the plaintiff's opposition. Thus, the Supreme Court erred in finding that the action was timely pursuant to CPLR 210(b).

In addition, the purported loan modification application submitted by the plaintiff in opposition to the motion was not an acknowledgment of the debt and an unconditional promise to repay the debt sufficient to reset the running of the statute of limitations (see Sichol v Crocker, 177 AD2d 842, 843; see also National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538; Albin v Dallacqua, 254 AD2d 444, 445; see generally Petito v Piffath, 85 NY2d 1, 8)."