IN RE: Dennis A. ZIPSER (2000)

In a proceeding, inter alia, pursuant to EPTL 11-4.6 to compel the respondent administrator Steven E. Zipser to pay the full amount of a final judgment of the Supreme Court, Westchester County, entered May 21, 1998, and pursuant to SCPA 809 for leave to commence an action against the respondent Western Surety Company to recover on a bond it issued in connection with the administration of the estate of Dennis Zipser, the petitioner appeals from an order of the Surrogate's Court, Westchester County (Emanuelli, S.), dated October 16, 1998, which denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with one bill of costs payable by the appellant to the respondent Western Surety Company.

 The Surrogate's Court properly denied that branch of the petition which was to compel the administrator Steven E. Zipser to pay the full amount of the judgment as the account of the estate had not been settled (see, Matter of Lesser, 154 Misc. 364, 277 N.Y.S. 123).

 The court properly denied that branch of the petition which was to commence an action against the respondent Western Surety Company to recover on a bond it issued in connection with the administration of the estate of Dennis Zipser.   A fiduciary's liability must first be ascertained and determined by the Surrogate's Court before a surety's liability under the bond can attach (see, U.S. v. Westchester Fire Insurance Company, 2d Cir., 478 F.2d 133;  Matter of Aquino, 186 Misc. 7, 58 N.Y.S.2d 63, affd. 271 App.Div. 780, 66 N.Y.S.2d 409).

MEMORANDUM BY THE COURT.