WILL OF DUDLA v. << (2025)

This matter comes before the Court on a contested probate proceeding and subsequent to this Court's Decision, Order & Decree dated October 10, 2024 ¹ , which dismissed Objectant's Verified Objections, except that it ordered a hearing pursuant to SCPA § 707 on the objection enumerated at paragraph forty (40) of the Objections as to the suitability of the proposed fiduciary, scheduled for December 11, 2024.

On November 29, 2024, Objectant requested a stay of the proceedings during his pursuit of an appeal of the October 10, 2024 Decision, Order & Decree. By letter order dated December 3, 2024, the Court denied Objectant's request for a stay and advised that the SCPA § 707 hearing remained scheduled for December 11, 2024.

All parties appeared on December 11, 2024, whereat Objectant objected to the hearing going forward. The court noted that Objectant, at 2:02AM that morning, filed a Notice of Motion and Motion to Recuse ² returnable on January 8, 2025, Affidavit in Support of Motion, along with numerous exhibits, seeking: (a) adjournment of this probate proceeding until after the instant motion can be heard; (b) an order setting aside both the Last Will and Testament of Mary E. Dudla and the Mary E. Dudla Family Trust, dated November 5, 2019; (c) an order for the recusal of Judge Jonathan G. Schopf; (d) an order that all prior orders of Judge Jonathan G. Schopf be vacated; (e) an order rescinding the Preliminary Letters granted to Cecelia C. Reilly; (f) an order changing venue to Rensselaer County Surrogate Court; (g) an order directing the commencement of an investigation by the Saratoga County District Attorney's Office; and (h) for such other and further relief as the Court may deem just and proper.

The Court set a revised motion schedule of January 15, 2025 for Petitioner's counsel to oppose/respond and January 29, 2025 for Objectant's reply, if any. The Court noted the Objection for the record, advised it would rule on Objectant's motion in due course, and proceeded with the SCPA § 707 hearing. At the conclusion of the hearing, the Court invited both parties to submit post-hearing proposed findings of fact and conclusions of law.

On January 14, 2025, Objectant filed a Verified Supplemental Affidavit in Support of Motion to Recuse. Petitioner submitted her Answer ³ on January 17, 2025 and on January 29, 2025, Objectant filed a Verified Reply Affidavit in Opposition. Neither side submitted proposed findings of fact and conclusions of law; however, the Court will liberally construe the received submissions to the extent possible.

Given that Objectant is pro se, the Court will note that, pleadings by a pro se litigant are “to be liberally construed” and, however inartful, must be held to a less stringent standard than formal pleadings drafted by lawyers (Erickson v Pardus, 551 US 89 [2007], quoting Estelle v Gamble, 429 US 97 [1976]). While courts may afford a pro se litigant some latitude, a pro se litigant does not have a greater right than any other litigant and will be held to the same standards of proof as those who are represented by counsel (Limani Realty, LLC v Zayfert, 40 Misc 3d 32 [App Term, 2d Dept 2012] [citations omitted]). A pro se litigant's failings at a trial does not mean they will be granted “a second bite at the apple” (id. at 36 [internal quotation marks and citation omitted]).

RECUSAL

As a threshold matter, the Court will address Objectant's Motion to Recuse. The Objectant bases his motion for recusal on his allegation that the Surrogate has demonstrated a “total lack of impartiality and his actions and inactions during the case vehemently demonstrate judicial impropriety.” Objectant's Motion details numerous unsupported allegations, which he offers in support his position. In sum and substance, all of these allegations/complaints appear to be related to this Court's October 10, 2024 Decision, Order & Decree, with which Objectant disagrees.⁴ Throughout his affidavits, Objectant misquotes, misinterprets, and often misapplies the law as well as the facts.

On Page 12 of Objectant's January 29, 2025 Verified Reply Affidavit, he states, without any basis, “Objectant strongly believed Mr. Levy has been communicating with Judge Schopf without the Objectant having privy to those conversations.” This allegation is entirely speculative, based upon Objectant's own belief, and wholly without merit. Petitioner's Opposition ⁵ thoroughly presents other examples of Objectant's unsupported allegations and inapposite legal analysis, including Objectant's arguments surrounding the meaning of “ex parte communications” and “practicing law in his own court.” The Court has reviewed Objectant's factual and legal assertions regarding recusal and finds them unavailing.

A judge is disqualified from hearing a case if he has an interest in the outcome, or is related by consanguinity or affinity to any party to the controversy (Judiciary Law § 14). No such factor is alleged here. It is well settled that, in the absence of a legal disqualification under Judiciary Law § 14, “a Trial Judge is the sole arbiter of recusal” (People v. Moreno, 70 NY2d 403, 405 [1987]). Canon 3 of the Code of Judicial Conduct provides relevant guidance by stating that a judge should disqualify himself when his “impartiality might reasonably be questioned, including but not limited to instances where ․ the judge has a personal bias or prejudice concerning a party; or ․ personal knowledge of disputed evidentiary facts ․” (Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1]).

The judge must look to his own conscience to determine whether he harbors any bias or prejudice which might interfere with a fair determination of the case before him (People v. Smith, 63 NY2d 41, 68 [1984]; People v. Bartolomeo, 126 AD2d 375, 391 [2d Dept 1987]). To be disqualifying, any alleged bias and prejudice “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case (United States v. Grinnell Corp., 384 US 563, 583 [1966]; see also, Berger v. United States, 255 US 22, 31 [1921] [“bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case”]; Heber v. Heber, 2025 NY Slip Op 01984 [3d Dept 2025] [Judge not disqualified where “actions were based upon information obtained in the performance of the court's adjudicatory functions as opposed to any bias”]).

Within this framework, there exists no basis for recusal, either alleged or in fact. The mere fact that the court reached conclusions adverse to the Objectant does not provide such a basis. The court relied upon no extrajudicial information in reaching its decision, and the court is confident that it has addressed and can continue to address the issues in this case in a fair and unbiased manner. Accordingly, the motion for recusal is denied. To the extent that Objectant's motion papers seek to relitigate prior rulings of this Court, such arguments are denied.

DISCUSSION

Moving on to the remainder of Objectant's Motion to Recuse, Objectant's January 29, 2025 Verified Reply Affidavit in Opposition correctly points out that Petitioner's Opposition was filed two (2) days after the deadline for filing. Objectant requests this Court to reject Petitioner's submission and treat his motion as unopposed. As explained below, the Court will accept Petitioner's filing.

22 NYCRR § 207.36 applies only to the filing of objections. Regarding motions, Courts have broad discretion to consider untimely opposition papers, especially where the time is brief and causes no prejudice (see Prato v Arzt, 79 AD3d 622 [1st Dept 2010], citing Dinnocenzo v Jordache Enters., 213 AD2d 219 [1st Dept 1995]). While Objectant alleges Petitioner's late submission “prejudiced the Objectant out of two days of his very limited time to properly Reply [sic] to Mr. Levy's papers”, he does not identify any actual prejudice by the minimal delay in opposing the motion; hence, Petitioner's opposition shall be considered, especially given New York's strong public policy in favor of litigating matters on the merits (see Nedeltcheva v MTE Transp. Corp., 157 AD3d 423, [1st Dept 2018]; see also Arrington v Bronx Jean Co., Inc., 76 AD3d 461 [1st Dept 2010]).

The thrust of the Objectant's motion is directly related to his dissatisfaction with this Court's October 10, 2024 Decision, Order & Decree. To the extent that Objectant's Motion to Recuse can be construed as a motion to reargue the Court's prior ruling, it is denied. Further, with the exception of recusal, to the extent Objectant's motion seeks to vacate all of this Court's prior rulings in this matter, such consideration is barred by the law of the case doctrine (Briggs v. Chapman, 53 AD3d 900[App. Div. 3rd Dept.] [law of the case doctrine, parties or their privies are “preclude[d from] relitigating an issue decided in an ongoing action]).

FIDUCIARY QUALIFICATION

The November 5, 2019 Last Will and Testament of Mary E. Dudla nominates Cecelia C. Reilly as executor. It is well settled that “a decedent's choice of executor should be given great deference and not disregarded unless that executor is not legally qualified to act as a fiduciary” (Matter of Palma, 40 AD3d 1157 [2007]; see Matter of Duke, 87 NY2d 465 [1996]; Matter of Flood, 236 NY 408 [1923]; Matter of King, 147 AD3d 1286 [2017]). Eligibility to receive letters testamentary is governed by SCPA § 707, which, insofar as is relevant here, permits the denial of letters to “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” (SCPA § 707 [1] [e]). The grounds for disqualification under SCPA § 707 are exclusive, and the burden of proof falls upon the party alleging ineligibility (see Matter of Palma, 40 AD3d at 1158; Matter of Shephard, 249 AD2d 748 [1998]; Matter of Krom, 86 AD2d 689 [1982], lv dismissed 56 NY2d 807 [1982]). Because disqualification of a named executor is a “most serious” course of relief, it “may only be decreed when the grounds set forth in [SCPA § 707] have been clearly established” (Matter of Duke, 87 NY2d at 473; accord Matter of Kaufman, 137 AD3d 1034 [2016], lv denied 28 NY3d 908 [2016]; Matter of Mercer, 119 AD3d 689 [2014]). (In re Leland's Will, 219 NY 387 [1916] [Courts will not “disregard testator's wishes by too liberal an interpretation of the specific disqualifications, nor consider the size and condition of the estate, except as a minor consideration”]).

As set forth in the October 10, 2024 Decision, Order & Decree, there appears to be a tumultuous family dynamic by and between the Objectant and Objectant's siblings and the decedent, during her lifetime. As with the prior proceedings, the December 11, 2024 hearing was, at times, hostile and contentious, and the Court observed the palpable acrimony between Objectant and Petitioner. “Friction, hostility or antagonism between a fiduciary and beneficiaries can also disqualify the fiduciary, but only when such enmity threatens to interfere with the administration of the estate” (Matter of Palma, 2007 NY Slip Op 3805 [App. Div. 3rd Dept.]). Mere friction or hostility between a fiduciary and a beneficiary is not sufficient grounds for disqualification (Matter of M. Venezia, 2006 NY Slip Op 527 [App. Div. 2nd Dept.]).

There was extensive direct and cross examination at the hearing, during which, the court admitted all of Objectant's exhibits, many over the objection of Petitioner's counsel. It is worth noting that both Petitioner and Objectant conflated the Estate and the Trust ⁶ throughout the hearing when discussing acts and/or omissions by the Petitioner and whether such were made in her capacity as trustee and or executrix. It is also contested whether certain parcels of real property should be considered estate assets or trust assets. In any event, the Court need not reach a determination of asset ownership at this stage of the proceedings.

The Objectant has alleged that Petitioner is not qualified based upon dishonesty, want of understanding and her improvidence/negligence. “The dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor.” (Matter of Latham, 145 A.D. 849, 854 [Pt Dept. 1911]). The word ‘improvidence’ “refers to habits of mind and conduct which become a part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question.” (Emerson v. Bowers, 14 NY 449,454 [1856]). Caselaw further defines improvidence as actions that would be detrimental to the estate. (Matter of Badore, 73 Misc 2d 471,475 [Surr. Ct. Franklin Co. 1973]). “Want of understanding as a ground for objection to the issuance of letters means an absence of intelligence sufficient to comprehend the nature and extent of fiduciary duties.” (Matter of Estate of Britton, 173 Misc 2d 300,302 [Surr. Ct. Westchester Co. 1997]).

Regarding want of understanding, and contrary to Objectant's assertion, Petitioner stated “yes” when asked if she understood her “responsibilities as far as being a fiduciary is concerned.” She further opined that she was doing what her “mother wished me to do as far as distribution of all of her assets” and explained that there was currently no money in the trust or estate to pay the debts Objectant was referencing.⁷

Objectant also alleges that Petitioner undervalued the real property at issue in her prior attempts to sell them and therefore such listing/sales agreements demonstrate her improvidence/negligence. Objectant also alleges that Petitioner was dishonest and perjured herself during her testimony. He cites Petitioner's “selective amnesia”, vague and evasive answers, and her undervaluing assets, along with removing some of the decedent's assets from the home after decedent's death.

Upon review of the entirety of Objectant's allegations, the Court does not find them to be of sufficient merit to meet his burden; however, that is not to say the Court had no concerns regarding Petitioner's answers at the hearing. Petitioner's acrimony toward Objectant was palpable. Of concern, Petitioner testified that she has received cash from logging of the Fort Ann property that has not been distributed and further that such cash is located in Petitioner's safe. Petitioner did not have the specific dollar value and did not provide an estimate, but testified she had a record of the monies collected. Notably, Petitioner further testified that she had disseminated this information, along with other relevant information, to her other siblings, to the exclusion of Objectant. While Petitioner stated she would have no problem providing such information to the Objectant, and also to the Court, if required, it is notable that Petitioner appears to be sharing relevant information inequitably, to the potential detriment of Objectant.

During testimony, it was also revealed that decedent's son, Alan Dudla, was living at the Fort Ann property and was not currently paying rent to either the estate or the trust despite having paid rent prior to decedent's death. While these circumstances are more properly raised in a future accounting proceeding, it does raise concerns that no eviction proceedings were instituted against Alan, while the testimony revealed pending eviction proceedings against the Objectant at other properties.

The Court must also weight the undisputed fact that Petitioner's three (3) other siblings have consented to Petitioner's appointment as executor. While the Court has some concerns noted above, disharmony between Petitioner and Objectant alone, in this case, does not jeopardize the proper administration of the estate (cf. Matter of Estate of Rad, 162 Misc 2d 229 [Surr. Ct., New York Co. 1994]). In order to ensure the same, the Court finds it appropriate to issue Limited Letters Testamentary, such that no distributions shall be made without further order of this Court, following a formal judicial accounting proceeding, or executed agreement/stipulation between the parties, which this Court will require prior to the closure of the estate.

THEREFORE; it is hereby

ORDERED and DECREED, that the Objectant's objection to the proposed fiduciary, Cecelia C. Reilly is denied, for the reasons stated herein; and it is further

ORDERED AND DECREED, that Limited Letters Testamentary, consistent with this Decision Order and Decree, issue to Cecelia C. Reilly upon her properly qualifying for such office; and it is further

ORDERED AND DECREED, that the Preliminary Letters Testamentary issued to Cecelia C. Reilly are revoked upon the issuance of the Limited Letters Testamentary; and it is further

ORDERED and DECREED, that the Objectant's Motion to Recuse is denied in its entirety, with prejudice for the reasons stated herein; and it is further

ORDERED and DECREED, that Objectant's remaining Objections and requested relief raised and not otherwise specifically addressed by this Decision, Order and Decree are deemed dismissed as being either previously determined, or without merit, and with prejudice.

Papers Considered:

Notice of Motion for Objecting to the Probate of the Will and the Irrevocable Trust Amongst Other Objections dated August 16, 2024 by Objectant Shawn P. Dudla

Verified Affidavit in Support of Motion Objecting to the Probate of the Will and the Irrevocable Trust Amongst Other Objections with Exhibits dated August 16, 2024 by Objectant Shawn P. Dudla

Motion Statement of Facts for Objecting to the Probate of the Will and the Irrevocable Trust Amongst Other Objections dated August 16, 2024 by Objectant Shawn P. Dudla

Answer by Stephen G. Levy, Esq. dated September 17, 2024

Verified Reply Affidavit in Opposition to Attorney's Answering Affidavit in Response dated October 4, 2024 by Objectant Shawn P. Dudla

Notice of Motion and Motion to Recuse dated December 7, 2024 by Objectant Shawn P. Dudla

Verified Affidavit in Support of Motion to Recuse dated December 7, 2024 by Objectant Shawn P. Dudla

Verified Supplemental Affidavit in Support of Motion to Recuse dated January 14, 2025 by Objectant Shawn P. Dudla

Answer by Stephen G. Levy, Esq. dated January 17, 2025

Verified Reply Affidavit in Opposition to Attorney's Answer/Objections Affidavit in Response dated January 29, 2025 by Objectant Shawn P. Dudla

FOOTNOTES

1.   The Court will assume the parties’ familiarity with the facts set forth in its prior October 10, 2024 Decision, Order & Decree.

2.   The Court notes that notwithstanding the title of Objectant's motion, it seeks extensive relief well outside of recusal.

3.   Petitioner's counsel styled his submission as an “Answer”; however, the Court will consider it as an both an answer to Objectant's sole remaining objection and an opposition to Objectant's motion.

4.   Upon information and belief, Objectant is already pursuing an appeal of said Decision, Order & Decree, which is the appropriate legal procedure to seek review.

5.   As discussed, infra, the Court will accept and consider Petitioner's Answer.

6.   The Trust referenced is not presently before the Court.

7.   Contrary to Objectant's line of questions regarding debts owed by the decedent, an executor, or other fiduciary, is not obligated to pay the decedent's debts from his or her own personal monies.

Jonathan G. Schopf, S.