                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     520542
________________________________

In the Matter of the Estate of
   PETER T. BROWN, Deceased.

JANET BROWN-CASTRO, as
   Coadministrator of the
   Estate of PETER T. BROWN,
   Deceased,
                    Petitioner;             MEMORANDUM AND ORDER

ZAN HEATH, as Coadministrator
   of the Estate of PETER T.
   BROWN, Deceased,
                    Appellant.
________________________________


Calendar Date:   February 16, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Gallagher Law Office, Binghamton (Brian R. Gallagher of
counsel), for appellant.

                             __________


Clark, J.

      Appeal from an order of the Surrogate's Court of Broome
County (Guy, S.), entered July 16, 2014, which, in a proceeding
pursuant to SCPA 711 and 719, granted petitioner's motion for
summary judgment and revoked respondent's letters of
administration.

      Peter T. Brown (hereinafter decedent) died intestate on
April 22, 2013 and was survived by petitioner, his daughter and
sole distributee. Although petitioner had priority to serve as
administrator of decedent's estate (see SCPA 1001 [1] [b]), she
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and respondent – decedent's domestic partner – jointly sought
letters of administration, which Surrogate's Court (Smith, S.)
issued in June 2013. Thereafter, in March 2014, petitioner
commenced this proceeding seeking respondent's removal as the
coadministrator of decedent's estate. Respondent joined issue
and asserted counterclaims for petitioner's removal as
coadministrator of the estate or, alternatively, for a decree of
probate of one of the two purported wills executed by decedent
and the issuance of letters testamentary. Petitioner responded
by letter and asserted that respondent's answer and counterclaims
were untimely and, in any event, without merit. Following a
conference at which counsel for both parties appeared and rested
on their papers, Surrogate's Court dismissed respondent's
counterclaims seeking a decree of probate and letters
testamentary, converted petitioner's letter response into a
motion for summary judgment and, upon such conversion, revoked
respondent's letters of administration and issued new letters of
administration solely to petitioner. Respondent appeals,1 and we
affirm.

      Once issued, Surrogate's Court may revoke letters of
administration if there is demonstrated "[f]riction, hostility or
antagonism between [the] fiduciary and beneficiaries . . ., but
only when such enmity threatens to interfere with the
administration of the estate" (Matter of Palma, 40 AD3d 1157,
1158 [2007]; see Matter of Morningstar, 21 AD3d 1285, 1287
[2005]; Matter of Duell, 258 AD2d 382, 382-383 [1999]; see also
Matter of Beharrie, 84 AD3d 1227, 1228-1229 [2011]; Matter of
Sadowski, 21 AD3d 1034, 1035 [2005]). Here, the parties'
submissions separately established a complete breakdown of their
relationship and evidenced their inability to cooperate as
coadministrators of the estate to such an extent that


     1
        In his appellate brief, respondent does not challenge the
determination of Surrogate's Court to treat petitioner's letter
response as a motion for summary judgment. Accordingly, any
issue with respect thereto is deemed abandoned (see Miller v
Genoa AG Ctr., Inc., 124 AD3d 1113, 1114 n [2015]; Matter of
Fairbairn, 9 AD3d 579, 580 n [2004], lv denied 3 NY3d 612
[2004]).
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petitioner's interests as a distributee and the proper
administration of the estate were threatened. As to the parties'
respective motions for removal of the other as administrator, the
record established that only petitioner had a statutory right to
serve as administrator (see SCPA 1001 [1] [b]), that respondent
was permitted to serve as an administrator only with petitioner's
consent (see SCPA 1001 [6]) and that solely petitioner's
interests were at stake in this administration proceeding.
Respondent's conclusory allegations of misconduct and unfitness
on the part of petitioner were insufficient to establish that she
was ineligible or unqualified to serve as administrator of the
estate or raise a genuine issue of material fact as to that
matter (see SCPA 707 [1]; Zuckerman v City of New York, 49 NY2d
557, 562 [1980]). Furthermore, while respondent asserted that he
had an interest in decedent's estate by virtue of an agreement
that he entered into with petitioner, the writings he submitted
to substantiate his claim – namely, a memorandum and a letter
written by the attorney for decedent's estate – did not satisfy
the statute of frauds as neither bore petitioner's signature and
they did little more than suggest an on-going negotiation between
respondent and petitioner regarding distribution of the estate
(see Scheck v Francis, 26 NY2d 466, 469-470 [2007]; Bennett v
First Natl. Bank of Glens Falls, 146 AD2d 882, 884 [1989];
compare Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 56-57
[1953]). Accordingly, we decline to disturb the determination of
Surrogate's Court to revoke respondent's letters of
administration and issue them solely to petitioner (see Matter of
Palma, 40 AD3d at 1159; Matter of Duell, 258 AD2d at 382-383).

     McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur.


     ORDERED that the order is affirmed, without costs.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
