IN RE: Amended Final Account of Proceedings

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

IN RE: Amended Final Account of Proceedings, etc., ESTATE OF Despina POULOS, Deceased. Sidney Naishtat, etc., Appellant, v. Bessie Zois, etc., Respondent.

Decided: February 13, 2001

WILLIAMS, J.P., TOM, MAZZARELLI, RUBIN and SAXE, JJ. Sidney Naishtat, pro se. Robert L. Gould, for Respondent.

Decree, Surrogate's Court, New York County (Eve Preminger, S.), entered July 6, 1998, which, inter alia, dismissed appellant's objections, order, same court and Surrogate, entered on or about August 17, 1999, which denied appellant's motion for sanctions, and order, same court and Surrogate, entered April 4, 2000, which, inter alia, denied appellant's motions for leave to file a proposed final accounting and counter-decree and for supplemental legal fees, granted respondent-coexecutor's cross motion to compel appellant to produce interest and bank statements relative to the estate, and discharged appellant as coexecutor, unanimously affirmed, with one bill of costs.

Appellant's motions, to the extent he sought to bill the estate additional legal fees, were properly denied.   The Referee assigned to review the parties' competing proposed final accountings noted that appellant's appointment of himself as attorney to represent his coexecutorship was apparently unprecedented, that there was no clear showing that appellant had differentiated between executorial and legal services, and that the estate should not be burdened where there was a duplication of services in the performance of executorial and legal duties by the same person.   The Surrogate's ruling, which adopted the findings of the Referee, is amply supported by the record.   Appellant's claim for additional commissions was not accompanied by sufficient support or explanation, and was also properly denied.   With respect to respondent's cross motion, we would add that appellant should submit any statements in his possession indicating interest payments made into the estate's bank accounts and any documents indicating that the former interest-bearing checking accounts were transferred into noninterest-bearing accounts.   We have considered appellant's other contentions and find them to be unavailing.

The Decision and Order of this Court entered herein on November 30, 2000 is hereby recalled and vacated.   See M-7635 and M-100 decided simultaneously herewith.