Matter of Bonerb

Summary

The Appellate Division, Fourth Department, held that a certificate of relief from disabilities did not require dismissal of petitions seeking to remove Suzette Bonerb as co-guardian and co-trustee. The court concluded that removal without a hearing was improper because disputed facts, including disclosures made during appointment applications and advice from counsel, required credibility determinations. The decree was modified and the matter remitted to Surrogate's Court for further proceedings.

Holdings

1. The issuance of a certificate of relief from disabilities did not require dismissal of the petitions. The certificate prevented automatic revocation but did not prevent the Surrogate from exercising discretion to revoke the fiduciary appointments.
2. The collateral-estoppel contention was not preserved because it was not raised in respondent's motions and therefore was not properly before the appellate court.
3. The Surrogate erred by granting the petitions and removing Suzette Bonerb without a hearing. Summary removal under SCPA 719 is permissible only when the misconduct is established by undisputed facts or concessions, or when the fiduciary's in-court conduct establishes the relevant facts.

Questions Presented

1. Whether the issuance of a certificate of relief from disabilities required dismissal of the petitions seeking removal of Suzette Bonerb as co-guardian and co-trustee.
2. Whether the collateral-estoppel defense was preserved for appellate review.
3. Whether Surrogate's Court could remove Suzette Bonerb summarily under SCPA 719 without conducting a hearing where the parties disputed facts and mitigating circumstances.

Disposition

reversed_and_remanded