The Third Department Appellate Division of the New York State Supreme Court has made an unusual ruling in the Matter of Palma, NY Slip Op 03805. It has upheld a decision of the Schenectady County Surrogate which granted a motion to remove a preliminary executrix without first holding a hearing. The lower court had found that the preliminary executrix was conflicted to the point where she could not serve as a fiduciary.

While it was noted that a potential conflict in the absence of actual misconduct is insufficient to warrant the removal of a fiduciary who was the nominee of the decedent for that position, the court found that it did not require a hearing to establish the preliminary executrix’s unfitness where she was charged with the responsibility of collecting a note owed to the estate when she, herself, had personally guaranteed the note. Because the court had already been involved in a series of cases involving this estate, the Surrogate had first hand knowledge that the initial obligor under the note was not solvent and would likely be unable to pay, thereby putting the fiduciary in the untenable position of having to collect from herself! Also, in the course of hearing these other matters, the court became directly aware of such a high level of hostility between the respective parties that it was unlikely that they could cooperate under the circumstances at hand.

Because of the direct knowledge which the court had acquired in collateral matters related to this estate, the Appellate Division agreed that there was no need to hold a hearing to remove the fiduciary but that this could be accomplished on motion.