SKOLNICK v. GOLDBERG (2002)

Order, Supreme Court, New York County (Robert Lippmann, J.), entered November 28, 2000, which insofar as appealed from as limited by the brief, granted defendant's cross motion to dismiss the complaint, unanimously affirmed, with costs.

In this action for indemnification, plaintiff seeks to hold defendant's decedent individually liable for commencing and maintaining an action against him alleging, inter alia, breach of fiduciary duty and misrepresentation on plaintiff's part in connection with a Purchase and Sale Agreement, dated April 25, 1990, between plaintiff and Nathaniel Colby, of whose person and property defendant's decedent was appointed guardian in 1993, and of whose estate defendant's decedent was appointed executrix following Colby's death in 1995.   Since defendant's decedent could only have brought and maintained the complained of action in her representative capacity, and not in her individual capacity, she cannot be held personally liable for any costs connected with the action.   Nor did bringing the action constitute a “wrong” for which defendant's decedent could be held personally accountable, since she was responsible as executrix to collect any collectible estate assets (see, EPTL 11-4.1;  Hone v. De Peyster, 106 N.Y. 645, 13 N.E. 778).