IN RE: Tom GJOKAJ (2004)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Tom GJOKAJ, a/k/a/ Tome Gjokaj, a/k/a Thomas Gjokaj, deceased. Salvatore Calcagno, petitioner-respondent; Fidelity & Deposit Company of Maryland, etc., et al., respondents-respondents; Pashko Gjokaj, appellant.

Decided: August 02, 2004

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Hass & Gottlieb, Scarsdale, N.Y. (Lawrence M. Gottlieb of counsel), for appellant. Daniel R. Miller, Brooklyn, N.Y., for petitioner-respondent. Mait, Wang & Simmons, New York, N.Y. (Robert Wang and Stuart B. Rosen of counsel), for respondent-respondent Fidelity & Deposit Company of Maryland.

In a proceeding to fix and determine the liability of Fidelity & Deposit Company of Maryland, as surety on the bond of Pashko Gjokaj, as co-administrator of the goods, chattels, and credits of Tom Gjokaj, a/k/a Tome Gjokaj, a/k/a Thomas Gjokaj, deceased, Pashko Gjokaj appeals, as limited by his brief, from so much of a decree of the Surrogate's Court, Nassau County (Riordan, S.), dated June 16, 2003, as approved a stipulation and order dated December 3, 2003, between and among the petitioner-respondent Salvatore Calcagno, and the respondents-respondents Fidelity & Deposit Company of Maryland and Sandra N. Conchado, settling Salvatore Calcagno's application to fix and determine the liability of Fidelity & Deposit Company of Maryland.

ORDERED that the decree is affirmed insofar as appealed from, with one bill of costs.

The Surrogate's Court properly approved the stipulation and order (hereinafter the settlement) dated December 3, 2003, between and among the petitioner-respondent Salvatore Calcagno and the respondents-respondents Fidelity & Deposit Company of Maryland (hereinafter F & D) and Sandra N. Conchado.   The indemnity agreement between F & D and the appellant, the former administrator of the decedent's estate, gave F & D the right to settle any claim, unless the appellant, inter alia, requested that F & D litigate the claim and deposited the appropriate collateral with F & D.   In light of the appellant's failure to deposit collateral with F & D in accordance with the indemnity agreement, F & D had the right to settle the claim over his objection (see Ebasco Constructors v. A.M.S. Constr. Co., 195 A.D.2d 439, 440, 599 N.Y.S.2d 866).   We further note that the settlement was entered into after this court affirmed the denial of the appellant's petition to vacate the final decree of the Surrogate's Court, Nassau County, entered upon his default, on the ground that, inter alia, he failed to demonstrate the existence of a meritorious defense (see Matter of Gjokaj, 286 A.D.2d 330, 728 N.Y.S.2d 704).