IN RE: ESTATE OF Bruce SOBOL

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

IN RE: ESTATE OF Bruce SOBOL, Deceased. Lydia Wagner, Petitioner-Respondent, v. Walter Drobenko, et al., Respondents-Appellants. Kevin H. Cohen, Nonparty Respondent.

Decided: January 20, 2005

MAZZARELLI, J.P., WILLIAMS, GONZALEZ, SWEENY, CATTERSON, JJ. Drobenko & Associates, P.C., Astoria (Walter Drobenko of counsel), for appellants. Wertheimer Associates, P.C., New York (Florrie L. Wertheimer of counsel), for Lydia Wagner, respondent. The Law Offices of Kevin H. Cohen, White Plains (Kevin H. Cohen of counsel), Guardian ad Litem for the child.

Order, Surrogate's Court, New York County (Eve Preminger, S.), entered on or about November 13, 2003, which appointed a receiver to manage decedent's business, Madison Avenue Caviarteria, Inc., pending a final determination of whether the Preliminary Letters Testamentary issued to Walter Drobenko should be revoked, and authorized the receiver to collect a $500,000 life insurance payment on behalf of the business, unanimously affirmed, with costs.

Contrary to appellants' assertion, the Surrogate did not effectively revoke the Preliminary Letters Testamentary that had been issued.   Appellant Drobenko was permitted to continue to serve as preliminary executor of decedent's will;  the temporary receiver displaced appellants only with respect to the operation of decedent's business and the collection of life insurance proceeds on the business's behalf.   In any event, it does not appear that the Surrogate exercised her discretion unsoundly in appointing the temporary receiver (see 64 B Venture v. Am. Realty Co., 194 A.D.2d 504, 599 N.Y.S.2d 567 [1993] ).   There is no dispute that the viability of the business was at risk and Drobenko, by his own admission, found the day-to-day management of the business onerously time-consuming.   In addition, it appears that Drobenko was a creditor of the decedent's estate, and that circumstance along with evidence showing that he was disposed to put the decedent's business into bankruptcy and had failed to answer inquiries of parties interested in investing in the business, raised the inference of a conflict of interest on his part sufficient to place the business at risk.   The need for a temporary receiver to avert the danger of irreparable loss and damage to the estate's property was adequately made out (see Dolgoff v. Projectavision, Inc., 235 A.D.2d 311, 312, 653 N.Y.S.2d 111 [1997] ).

We have considered appellants' remaining contentions and find them unavailing.