CHARLOTTE RIALL v. << (2026)

The following papers have been considered in the preparation of this decision:

Notice of Motion 1

Affirmation in Support with Exhibits 2

Memorandum of Law 3

Verified Objections in Opposition to Application

for Preliminary Letters Testamentary 4

Supplemental Affirmation in Support 5

Reply Memorandum of Law 6

Before the court is a motion by Scott Riall to dismiss the petition for limited letters of administration filed by Kenneth C. Riall. Kenneth C. Riall has also filed objections to the petition for preliminary letters testamentary filed by Scott F. Riall.

The decedent, Charlotte Riall (a/k/a Charlotte J. Riall) (the decedent), died on May 22, 2025, survived by her three children, Scott F. Riall (Scott), David J. Riall (David) and Kenneth C. Riall (Kenneth).

Scott has offered for probate an instrument dated May 21, 2010, purporting to be the decedent's will. The purported will nominates Scott as executor and bequeaths the decedent's residuary estate in equal shares to her three children after certain pre-residuary bequests to other individuals. Scott seeks preliminary letters anticipating a delay in probate and also because he asserts preliminary letters are necessary to obtain tax documents to prepare the decedent's income tax return. In addition, Kenneth seeks limited letters of administration to bring a SCPA 2103 proceeding regarding accounts and assets which he claims his brothers "were instrumental in clandestinely structuring." Kenneth objects to the petition for preliminary letters testamentary arguing that there is no immediate need for preliminary letters and that the application was filed in retaliation for his application for limited letters of administration.

Scott has now moved to dismiss the petition filed by Kenneth for limited letters of administration for failure to state a cause of action. Scott also argues that the issuance of limited letters of administration to Kenneth would not be in the best interests of the estate.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the allegations "are to be afforded a liberal construction, the facts are alleged to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts are alleged within any cognizable legal theory" (Gorbatov v Tsirelman, 155 AD3d 836, 837 [2d Dept 2017]).

The Surrogate's Court continues to exercise complete and full jurisdiction over all matters relating to estates and the affairs of decedent's (SCPA 201(3): Matter of Piccione, 57 NY2d 278 [1982]). Moreover, SCPA 702 provides that limited letters may be granted to, inter alia, commence or maintain an action against anyone against whom the fiduciary fails to bring a proceeding (SCPA 702 [9]) or to any other purpose deemed by the court to be appropriate or necessary (SCPA 702 [10]). The grant of letters is discretionary (Matter of Vasquez, 162 Misc 2d 184 [Sur Ct, New York County 1994]; Matter of Stoller, 4 Misc 3d 538 [Sur Ct, New York County 2004]). The "minimum quantum of proof needed to commence such a proceeding ...is the submission of allegations made merely 'upon information and belief' " (Matter of Berger, NYLJ, Feb. 10, 2004 at 27 [Sur Ct, Nassau County 2004]). Further, the granting of limited letters "does not resolve the various contested factual issues concerning the validity of the transfers. It only allows inquiry into those transactions" (Matter of Oppmann, NYLJ, Nov. 30, 2001 at 17, col 1 [Sur Ct, Westchester County 2001]).

Here, Kenneth alleges that there were pre-death transactions regarding the decedent's assets orchestrated by Scott. Since Scott allegedly was involved in the transfers, he, therefore, has a conflict of interest. The allegations in the petition, taken as true, sufficiently state a cause of action. Accordingly, the motion to dismiss is DENIED. Limited letters of administration shall issue to Kenneth.

Concerning the application for preliminary letters testamentary, SCPA 1412, which governs the issuance of preliminary letters testamentary, was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate. The purpose of SCPA 1412 is to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests (Matter of Hubbard, NYLJ, Aug. 25, 1997, at 30, col 2 [Sur Ct, Bronx County 1997]; Matter of Roth, NYLJ, Sept. 16, 1999, at 35, col 2 [Sur Ct, Kings County 1999]; McKinney's Cons. Laws of New York, Ann. Vol. 58A, Sec. 1412. Practice Commentaries, p. 344). Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest (see, e.g., Matter of Smith, 71 Misc 2d 248 [Sur Ct, Erie County 1972]; Matter of Bayley, 72 Misc 2d 312 [Sur Ct, Suffolk County 1972], affd 40 AD2d 843 [2d Dept 1972], appeal dismissed, 31 NY2d 1025 [1973])."Moreover, the clear thrust of SCPA 1412 is to honor the testatrix' [sic] wishes with regard to the appointment of a fiduciary for her estate, even on a temporary basis, and to reduce the possibility of spurious pre-probate contests" (Matter of Hubbard, NYLJ, Aug. 25, 1997, at 30, col 2 [Sur Ct, Bronx County 1997]).

A testator's wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing (Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6 [Sur Ct, Nassau County 2001]; Matter of Schill, NYLJ, Mar. 15, 2000, at 30, col 2 [Sur Ct, Nassau County 2000]; Matter of Fordham, NYLJ, Dec. 16, 1998, at 23, col 3 [Sur Ct, Bronx County 1998]; Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 35 [Sur Ct, Kings County 1997]). Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue (Matter of Bayley, 72 Misc 2d 312 [Sur Ct, Suffolk County 1972], affd 40 AD2d 843 [2d Dept 1972], appeal dismissed, 31 NY2d 1025 [1973]).

Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible under SCPA 707 (Matter of Roth, NYLJ, Sept. 16, 1999, at 35, col 2 [Sur Ct, Kings County 1999]; Matter of Scamardella, NYLJ, June 3, 1996, at 32, col 4 [Sur Ct, Richmond County 1996]). Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters (Matter of Vermilye, 101 AD2d 865 [2d Dept 1984]; Matter of Rella, NYLJ, Mar. 16, 1999, at 28, col 5 [Sur Ct, Westchester County 1999]; Matter of Nigro, NYLJ, Feb. 3, 2003, at 23, col 3 [Sur Ct, Kings County 2003]). Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator (Matter of Cavallo, NYLJ, Dec. 21, 2001, at 25, col 2 [Sur Ct, Richmond County 2001]; Matter of Smith, 71 Misc 2d 248 [Sur Ct, Erie County 1972]).

As the Surrogate in Matter of Scott (2022 NY Slip Op 30730[U] [Sur Ct, Bronx County 2020] stated:

"The party alleging that the fiduciary is ineligible to serve bears the burden of proof in this regard (see Matter of Marriott, NYLJ, October 10, 2017 at page 32 [Sur Ct, Albany County]). Preliminary letters should be denied to a nominated fiduciary sparingly, and only where there is a clear and strong showing of serious misconduct or wrongdoing that endangers the safety of the estate (see Matter of Israel, 64 Misc 2d 1035, 315 N.Y.S. 2d [Sur Ct, Nassau County 1970])."

On the state of the record, Kenneth has not met his burden to show that preliminary letters should not issue to Scott. The court will not allow opposition to preliminary letters to create a contest within a contest. (Matter of Fordham, NYLJ, Dec. 16, 1998 at 23, col 3 [Sur Ct, Bronx County 1998]).

Preliminary letters testamentary shall issue to Scott Riall upon his duly qualifying under the law.

An order for preliminary letters and a decree for limited letters of administration shall be settled in accordance with this decision.

This constitutes the decision and order of the court.

Dated: July 9, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court

David P. Sullivan, J.