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					                                                         108GFS
Time of Request: Friday, March 30, 2012   10:19:16 EST
Client ID/Project Name: 09999.0650
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Job Number:      1827:342281335

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Search Terms: 79 AD2d 78




Send to:   DAGOSTINO, JACLENE
           FARRELL FRITZ PROFESSIONAL CORPORATION
           1320 REXCORP PLZ
           UNIONDALE, NY 11556
                                                                                                                Page 1




                 In the Matter of the Estate of Mary Lainez, Deceased. Jeannette Gahrman, as
                Administratrix of the Estate of Mary Lainez, Deceased, et al., Appellants; Depart-
                         ment of Social Services of the City of New York, Respondent

                                           [NO NUMBER IN ORIGINAL]

                       Supreme Court of New York, Appellate Division, Second Department

                          79 A.D.2d 78; 435 N.Y.S.2d 798; 1981 N.Y. App. Div. LEXIS 9700


                                                  February 17, 1981

PRIOR HISTORY:              [***1] Appeal from an order      the trial court lacked subject-matter jurisdiction to hear
of the Queens County Surrogate's Court (Louis D.             the claim because it was made by a living person against
Laurino, S.), entered February 20, 1980, which denied a      another living person. The trial court denied the motion,
motion by the administratrix and the surety on the ad-       but the court reversed. The trial court did not have the
ministration bond to dismiss the objections of the De-       power to adjudicate a claim interposed solely against
partment of Social Services of the City of New York for      decedent's mother in her individual capacity. Rather, the
lack of subject matter jurisdiction.                         trial court's jurisdiction was limited to matters affecting
                                                             estates of decedents and not to independent matters in-
     Matter of Lainez, 102 Misc 2d 138.
                                                             volving controversies between living persons. The trial
                                                             court had no jurisdiction over a claim by a creditor
DISPOSITION:           Order of the Surrogate's Court,
                                                             against a distributee absent a showing that the distributee
Queens County, dated February 20, 1980, reversed, on
                                                             assigned his share to the creditor.
the law, without costs or disbursements, motion to dis-
miss objections granted and order granting the Depart-
                                                             OUTCOME: The court reversed the order denying
ment of Social Services of New York City leave to in-
                                                             plaintiffs' motion to dismiss the DSS's objection for lack
tervene, dated February 16, 1978, is vacated.
                                                             of subject-matter jurisdiction.
CASE SUMMARY:
                                                             LexisNexis(R) Headnotes

PROCEDURAL POSTURE: Plaintiffs, administratrix
and a surety on an administration bond, appealed from an
                                                             Civil Procedure > Jurisdiction > Subject Matter Juris-
order of the Queens County Supreme Court (New York),
                                                             diction > Jurisdiction Over Actions > Limited Jurisdic-
which denied their motion to dismiss the objections of
                                                             tion
defendant Department of Social Services of the City of
                                                             Estate, Gift & Trust Law > Probate > Procedures in
New York (DSS) for lack of subject-matter jurisdiction.
                                                             Probate > General Overview
                                                             Governments > Courts > Authority to Adjudicate
OVERVIEW: The decedent was murdered and the sole
                                                             [HN1] The Surrogate's Court is a court of limited juris-
distributee of a life insurance policy was her mother, the
                                                             diction and possesses only such powers as are conferred
administratrix of the estate. The DSS sought recovery of
                                                             upon it by statute.
money which had been paid to the administratrix and her
children and moved to intervene in the accounting pro-
ceeding as a creditor of the distributee. The trial court
                                                             Estate, Gift & Trust Law > Probate > Procedures in
granted the DSS leave to intervene as a possible creditor
                                                             Probate > General Overview
of the distributee. Plaintiffs then moved for summary
                                                             Governments > Courts > Authority to Adjudicate
judgment dismissing the DSS's claim on the ground that
                                                                                                                 Page 2
                                        79 A.D.2d 78, *; 435 N.Y.S.2d 798, **;
                                        1981 N.Y. App. Div. LEXIS 9700, ***

[HN2] The power of the Surrogate's Court relates to          decedent as an infant, her mother, Jeannette Gahrman,
matters affecting estates of decedents and not to inde-      became the sole remaining distributee and was appointed
pendent matters involving controversies between living       administratrix. The proceeds of a life insurance policy
persons. The only proper parties before the Surrogate on     constituted the only asset of the estate.
an accounting are creditors or those claiming to be cred-
                                                                  The account filed by the administratrix, which
itors of the decedent.
                                                             showed a net estate of $ [***3] 39,000, included
                                                             Schedule D which demonstrated that no claim of credi-
                                                             tors, contingent or otherwise, had been presented.
Estate, Gift & Trust Law > Probate > Procedures in
                                                             Seeking the recovery of $ 41,666.92 which had been paid
Probate > General Overview
                                                             to Mrs. Gahrman and her children during the period of
Governments > Courts > Authority to Adjudicate
                                                             1967-1977, the Department of Social Services of New
[HN3] The Surrogate's Court has no jurisdiction over a
                                                             York City (Social Services) then moved to intervene in
claim by a creditor against a distributee or legatee of an
                                                             the accounting proceeding "as a creditor of the distribu-
estate absent a showing that the distributee assigned his
                                                             tee Jeannette Gahrman". Social Services contended that
share to the creditor.
                                                             pursuant to the provisions of sections 101, 103 and 104
                                                             of the Social Services Law, it was a creditor of Mrs.
HEADNOTES
                                                             Gahrman and therefore entitled to obtain reimbursement
    Courts -- Surrogate's Court                              from her as distributee. The acting Surrogate responded
                                                             by granting Social Services leave to intervene as "a pos-
      The Surrogate's Court does not have jurisdiction to
                                                             sible creditor" of the distributee.
adjudicate a claim that the sole distributee of her daugh-
ter's estate owes money to the Department of Social Ser-          After a verified bill of objections to the
vices; although the department is a preferred creditor of    administratrix' account had been filed by Social Services,
the distributee it has no parallel right of action against   she and the surety on the administration bond, United
the decedent or her estate and the claim was thus inter-     States Fidelity and Guaranty Company (the surety),
posed solely against decedent's mother in her individual     moved for summary judgment dismissing the Social Ser-
capacity. The only proper parties before the Surrogate on    vices claim on the ground that the Surrogate's Court
an accounting are creditors or those claiming to [***2]      lacked subject matter jurisdiction to hear the claim be-
be creditors of the decedent and the Surrogate's Court has   cause it was made by one living person (the corporate
no jurisdiction over a claim by a creditor against a dis-    City of New York) [***4] against another living per-
tributee or legatee of an estate.                            son. Social Services replied that under SCPA 201 and
                                                             210 the Surrogate's Court has jurisdiction to hear "all
COUNSEL: J. Bruce Byrne, for Jeannette Gahrman, as           matters relating to the affairs of decedents," including
administratrix, appellant, Duer & Taylor (Frank C.           proceedings for the recovery of funds previously paid to
McLaughlin, Jr., of counsel), for United States Fidelity     public assistance recipients. The Surrogate denied the
& Guaranty Company, appellant.                               motion to dismiss (102 Misc 2d 138) and the
                                                             administratrix and the surety appealed. We believe that
Allen G. Schwartz, Corporation Counsel (Edward F. X.         reversal is mandated.
Hart and Ronald E. Sternberg of counsel), for respond-
                                                                  Although Social Services is a "preferred creditor" of
ent.
                                                             Jeannette Gahrman under subdivision 1 of section 104 of
                                                             [*80] the Social Services Law, in the circumstances of
JUDGES: Lazer, J. Hopkins, J. P., Cohalan and Wein-
                                                             this case it has no parallel right of action against the de-
stein, JJ., concur.
                                                             cedent or her estate (see Social Services Law, § 104,
                                                             subd 2). Since the decedent was an infant when she
OPINION BY: LAZER
                                                             died and had no property or funds in excess of her rea-
                                                             sonable requirements at the time she was receiving as-
OPINION
                                                             sistance, no claim for recovery of that assistance could
                                                             be asserted against her or her estate by Social Services
 [*78] OPINION OF THE COURT
                                                             (see Baker v Sterling, 39 NY2d 397; Matter of Colon, 83
      [**799] The decedent, a 17-year-old woman, was         Misc 2d 344). Therefore, the claim was interposed solely
killed by her husband who then committed suicide, thus       against decedent's mother in her individual capacity and
leaving her parents as her only survivors. Since the         the narrow question before us is whether [***5] the
decendent's father [*79] subsequently was disqualified       Surrogate's Court has the power to adjudicate such a
as a distributee by a Special Referee pursuant to EPTL       claim. We conclude that it does not.
4-1.4 for having abandoned and refused to support the
                                                                                                                  Page 3
                                         79 A.D.2d 78, *; 435 N.Y.S.2d 798, **;
                                         1981 N.Y. App. Div. LEXIS 9700, ***

     [HN1] The Surrogate's Court is a court of limited ju-    ( Matter of Young, 15 App Div 285, affd 160 NY 705;
risdiction and possesses only such powers as are con-         Matter of Simonson, 271 App Div 420, supra;
ferred upon it by statute ( Matter of Hyams, 237 NY 211;      Josephberg v Cavallero, 262 App Div 1). There is no
[**800] People ex rel. Safford v Surrogate's Ct. of           suggestion of an assignment in this case and therefore the
County of Genesee, 229 NY 495; Matter of Martin, 211          Surrogate lacked the power to entertain Social Services'
NY 328; Matter of Thompson, 184 NY 36; Matter of              claim.
D.D., 64 AD2d 898). The essence of the objections and
                                                                   In an attempt to circumvent these established legal
claim asserted is that Jeannette Gahrman, a distributee,
                                                              principles, Social Services argues that since equity re-
owes money to the objector. But [HN2] the power of
                                                              gards as done "that which in fairness and good con-
the Surrogate's Court relates to matters affecting estates
                                                              science should have been done or ought to be done" (20
of decedents and not to independent matters involving
                                                              NY Jur, Equity, § 85, p 109), it should be considered an
controversies between living persons ( Matter of Simon-
                                                              assignee of the distributee's rights. However, when the
son, 271 App Div 420; Matter of Heinze, 179 App Div
                                                              Legislature intends to so expand [***7] the jurisdiction
453; see Schoelles v Zausmer, 2 AD2d 979). The only
                                                              of the Surrogate's Court, "it is safe to assume that it will
proper parties before the Surrogate on an accounting are
                                                              do so in express terms and not leave it to be inferred
creditors or those claiming to be creditors of the decedent
                                                              from vague and indefinite expressions" ( Matter of
( Matter of Pluym, 195 App Div 565). Here, by the terms
                                                              Thompson, 184 NY 36, 45, supra; Matter of Heinze, 179
of their own motion and the Surrogate's order, Social
                                                              App Div 453, supra).
Services claims only to be a creditor of the sole distribu-
tee. It is well settled that [HN3] the Surrogate's [***6]         Accordingly, the order denying the motion to dis-
Court has no jurisdiction over a claim by a creditor          miss the objections is reversed, on the law, the motion is
against a distributee or legatee of an estate ( Matter of     granted and the order granting the Department of Social
Thompson, supra; Matter of Edelmuth, 265 App Div 20,          Services leave to intervene is vacated.
affd 290 NY 570; Matter of Pluym, supra; Matter of
                                                                   Order of the Surrogate's Court, Queens County,
Heinze, supra; Matter of Maynard, 37 Misc 2d 184;
                                                              dated February 20, 1980, reversed, on the law, without
Matter of Goldowitz, 171 Misc 198, revd on other
grounds 258 App Div 62, app dsmd 283 NY 680; Matter           costs or disbursements, motion to dismiss objections
of Witt, 141 NYS 179; see, generally, 1 Warren's Heaton,      granted and order granting the Department of Social Ser-
                                                              vices of New York City leave to intervene, dated Febru-
Surrogates' Courts [6th ed], § 35) absent a showing that
                                                              ary 16, 1978, is vacated.
the distributee assigned his share to the [*81] creditor
                                                         108GFS
********** Print Completed **********

Time of Request: Friday, March 30, 2012   10:19:16 EST

Print Number:    1827:342281335
Number of Lines: 165
Number of Pages:




Send To:   DAGOSTINO, JACLENE
           FARRELL FRITZ PROFESSIONAL CORPORATION
           1320 REXCORP PLZ
           UNIONDALE, NY 11556

				
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