SURROGATE`S COURT: STATE OF NEW YORK COUNTY OF

SURROGATE'S COURT: STATE OF NEW YORK
COUNTY OF WESTCHESTER
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In the Matter of Samuel J. Levitin to Revoke Letters
of Trusteeship Issued to Nancy Silberkleit in that
Certain Probate Proceeding Involving the Last Will
and Testament of
DECISION & ORDER
File No. 2008-2036/G
MICHAEL I. SILBERKLEIT,
Deceased.
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WALSH -ACTING SURROGATE
In this miscellaneous proceeding brought by Samuel J. Levitin ("Samuel") to revoke
letters of co-trusteeship issued to the decedent's wife, Nancy Silberkleit ("Nancy"), for the
trusts under the will of Michael I. Silberkleit, Nancy moves for an order granting (1)
summary judgment, dismissing the petition and (2) the payment of the bill for services
rendered by Dr. Harold Bronheim. Samuel, her co-trustee, opposes the motion and crossmoves for an order (1) granting summary judgment, awarding the relief requested in the
petition, (2) declaring Dr. Bronheim's report incompetent; (3) requiring Nancy to submit to
a further psychiatric examination before Dr. Andrew Levin and execute HIPPA
authorizations ; and (4) extending the period to complete discovery.
The motions are
decided as set forth below.
The facts relevant to these motions are as follows:
The decedent and Richard Goldwater ("Richard") were engaged in running Archie
Comic Publications, Inc. ("Archie"), and each controlled a 50% interest in the company.
On May 2, 2008, the decedent executed an instrument which provided for a family
trust (Article SEVENTH) and a marital trust (Article NINTH). The Article SEVENTH trust
MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
was to be funded from the decedent's estate assets up to his "adjusted exemption
equivalent", and it primarily was to benefit Nancy. On Nancy's death , the remainder of this
trust was to be distributed 75% to Alexandria Silberkleit ("Alexandria") (the decedent's
daughter with Nancy) or her descendants and 25% was to be divided among Susan
Berkley ("Susan"), Amy Silberkleit ("Amy") and David Silberkleit ("David ") (the decedent's
offspring from his first marriage) when Alexandria reached the age of 40.
The Article NINTH trust, which was to be funded with the decedent's residuary
estate , with Nancy to receive the income and discretionary invasions of principal , was
never funded. Article SEVENTEENTH concerns some of the powers of the fiduciaries .
Specifically, subsection (J)(2) states that if there is a dispute between fiduciaries, Nancy's
decision would be controlling. On May 5, 2008 , the decedent executed a codicil to the May
2, 2008 instrument.
In early 2008, Richard died. 1 A few months later, on August 5, 2008, the decedent
died, and on August 20 , 2008, Nancy and Eugene Zuriff ("Eugene"), a friend of the
decedent and the nominated co-executor and co-trustee, filed a petition for probate of the
instruments dated May 2, 2008 and May 5, 2008, and citations were served on Susan ,
Amy and David . On August 25, 2008 , preliminary letters testamentary were issued to
Nancy and Eugene.
On March 26 , 2009 , the RGIT sold Jonathan Goldwater ("Jonathan"), Rich ard 's half-
The sha res constituting his 50% interest were held in the Richard Goldwater
irrevocable trust ("RGIT").
1
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MATTER OF MICHAEL I. SILBERKLE IT
File No. 2008-2036/G
brother, 25% of the shares of Archie (j'; of what it had) , and Nancy became a co-chief
executive officer of Archie. Jonathan replaced Richard , and he also became the other
chief executive officer. An employment agreement detailed the functions of each 2
On October 29 , 2009 , Susan filed objections to the probate petition. For nearly
four years , extensive discovery was conducted and continued , and motion practice ensued .
On July 7, 2011, Archie instituted an action in the Supreme Court, New York County
against Nancy, seeking a temporary restraining order (the "TRO") and a preliminary
injunction, prohibiting her from working at the Archie offices and contacting most Archie
employees and all Archie vendors.
The Supreme Court issued the TRO, and
subsequently, it issued an order granting the injunction against Nancy.
The issues
addressed in New York County and in other related proceedings not in this court were
referred for mediation .
On October 11, 2011, Archie filed a petition, verified by Jonathan, requesting that
the court modify Nancy's preliminary letters to exclude her from participating in Archie in
favor of Eugene as co-executor. By decision and order dated October 17, 2011, the court
declined to entertain the petition, stating that Archie did not have standing in the
proceeding and that there was "already a proceeding pending in Supreme Court regarding
Nancy's conduct in which many of the allegations made mirror those in the petition brought
before this court to be entertained .. .".
2
These agreements expired on December 31, 2013.
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
On January 12, 2012 , Eugene commenced a proceeding against Nancy seeking to
revoke her preliminary letters and deny her letters of trusteeship and the authority to deal
with Archie shares.
On January 17, 2012, a settlement was reached among the parties to the
proceedings then pending in this court. As part of that settlement: (1) Susan withdrew her
objections, and Susan , Amy and David renounced any contingent interest they had in the
Article SEVENTH trust in exchange for $775,000.00; (2) Eugene renounced his
appointment as co-executor and co-trustee, withdrew his revocation proceeding against
Nancy, and received commissions ($150,000.00) ; and (3) Eugene's counsel received legal
fees ($142,500.00). Noted by Nancy's counsel in colloquy in the record before the court
at the allocution of th is settlement was that Samuel (the petitioner in this proceeding) would
be making an application to the court to be appointed co-trustee in place of Eugene.3
On May 24, 2012, the instruments executed by the decedent were admitted to
probate, and letters testamentary issued to Nancy.
In June 2012, as a result of the mediation of the issues relating to the actions in
New York County, the parties signed an agreement, detailing the future duties of Nancy
and Samuel with respect to Archie. According to both Samuel and Nancy, Samuel was to
act as the "de facto liaison" between Nancy and Archie, and he was to "review all fin ancial
The record reflects th at, at some point in 2011, Samuel , alleged to be a longstanding friend or associate of Na ncy, was co nsulted by her with respect to assisting
her in her business affairs.
3
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
matters on behalf of [Nancy]".
Thereafter, Samuel petitioned the court to be appointed co-trustee, and by order
dated July 24, 2012, he and Nancy were appointed co-trustee of the trusts.
Five months later, on December 17, 2012, Samuel filed this proceeding requesting
that the court revoke Nancy's letters and confirm that she has no authority to act with
respect to Archie.
In this petition, Samuel alleged that he experienced tremendous
frustration in attempting to work with Nancy, and she was unprofessional, abusive, hostile
and lacked concentration and ability to understand business matters. He also stated that
he had a fiduciary duty to the beneficiaries of the trust to preserve the value of Archie.
Six months after the filing of Samuel's petition , Nancy filed a petition to revoke
Samuel's letters based on various breaches of fiduciary duty including waste and misuse
of assets.
Issue was joined 1n both proceedings, and the court issued a comprehensive
discovery order. Extensive discovery was conducted in the two revocation proceedings.
Samuel was deposed on July 9, 2014. At that time , he testified that his attorney was
being paid by Archie and had been paid $70,000 to that point. He recounted that he would
tell Jonathan or a Mr. Mooar how much his counsel was owed, then from Archie funds , a
check would be drawn to Samuel who would then pay his attorney. Th is agreement
reached with Mr. Mooar and Jonathan was never discussed with Nancy and permission
from the court was not sought.
On November 25 , 201 4, Samuel moved this court for an order directing Nancy to
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
submit to a psychiatric examination by Dr. Ilene Zwirn. The motion was opposed. On May
26, 2015 , this court (Everett, Acting Surrogate) issued an order directing Nancy to submit
to a psychiatric examination and outlining the procedure by which an independent medical
practitioner was to be chosen to perform the examination. When the parties could not
agree on a physician to conduct the examination, in accordance with the May 26, 2015
order, the court chose Dr. Bronheim from various curriculum vitae submitted to the court
by the attorneys.
On August 26, 2015 , the attorneys for Samuel and Nancy sent a joint letter to Dr.
Bronheim, outlining the procedures for the examination and stating that the fee for the
examination would be paid by Samuel. The examination took place and lasted for 2 & 3/4
hours. Subsequently, Dr. Bronheim rendered a report dated September 21, 2015, which
concluded that Nancy was fit to serve as a trustee under the decedent's will and as a CEO
of Archie.
As noted above, Nancy now moves for summary judgment, dismissing the petition
and ordering the payment of Dr. Bronheim's bill by Samuel, and Samuel cross-moves for
summary judgment, granting the relief requested in the petition and for additional relief
regarding discovery.
In support of her motion, Nancy submitted the affirmation of her attorney which
attached numerous exhibits, and the affidavit of Dr. Bronheim which attached his report
previously filed with the court and which stated that he had not been paid by Samuel. Also
submitted were the affirmations of Pau l D. Jaffe, Esq., Doreen Stephens, Fred Mausser
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
and Theresa Bagley, all of which stated in essence that Nancy has been unfairly treated
at Archie by Jonathan and other employees and that she is a person capable of handling
the responsibilities of a fiduciary and as a CEO of Archie.
Nancy argues that summary judgment should be granted because based on the fact
that Dr. Bronheim has unequivocally stated that she "possesses an understanding of her
duties as co-trustee and is sufficiently fit to perform those duties", there exists no material
issue of fact for trial in this proceeding.
In opposition to the motion and in support of the cross motion , Samuel submits the
affirmation of his counsel which annexes 119 exhibits, some with subparts, most of which
are affidavits and documents submitted in the New York Supreme Court and in
proceedings in this court. Also annexed, among other things , are emails, letters and
portions of deposition transcripts. Samuel also submits his own affidavit which states that
no hearing is required because the voluminous record demonstrates that Nancy's behavior
makes her unable to serve as a fiduciary. Finally, in support of the cross motion , Samuel
offers the affirmations of Dr. Lawrence Loeb and Dr. Ilene Zwirn both of which state that
Dr. Bronheim's report is insufficient in many ways and should not be considered.
Samuel arg ues that there are no material issues of fact because the enormous
record demonstrates that Nancy is "disqua lified from acting as a fiduciary by reason of her
improvidence and want of understanding, and is otherwise unfit for the execution of her
office as co-trustee within the meaning of SCPA 711 [2] and [8]" and that she has violated
SCPA 711 [3] in fai ling to respect a court order of the New York Supreme Court and must
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
be removed on that basis as well.
SCPA 711 [2] authorizes a change to letters where a fiduciary has wasted estate
assets because of "dishonesty, drunkenness, improvidence or want of understanding".
The issue in this section is whether the fiduciary's letters should be altered because of her
wasting assets, defined as loss of value on account of failure to use reasonable care (see
EPTL 11-2.3). The modification is based on facts which demonstrate the effect of the
conduct on the assets . For example, as to drunkenness , courts have held intoxication
alone mig ht not lead to revocation but that revocation of letters would occur where there
was habitual intoxication which rendered a fiduciary incompetent to fulfill his responsibilities
(see Matter of Reichart, 34 Mise 288 [Sur Ct NY Co 1901 ]; see also Matter of Secondino,
NYLJ, May 4, 2000, at p 26, col6 [after hearing, evidence insufficient to establish habitual
abuse and that substance abuse affected the ability of fiduciary to manage estate affairs]) .
SCPA 711 [8] authorizes the modification of letters when a fiduciary does not
possess the qualifications to perform the task by reason of "substance abuse, dishonesty,
improvidence, want of understanding or being otherwise unfit". "Want of understanding"
has not been defined to mean "insane or a lunatic or that [one] is generally incompetent"
but a "ruling that the [individual] has not the requisite understanding of the duties and
responsibilities that she would be ca lled upon to exercise in administering an estate [of
value]" (see Matter of Phyfe, 115 Mise 699 [Sur Ct NY Co 1920]). Wa nt of understanding
also does not necessarily mean a lack of intelligence or education al preparation (see
Matter of Kaunitz, NYLJ, June 4, 1969, at 24 [Sur Ct NY Co .]) . It has been construed to
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
mean a failure to comprehend and fulfill the functions and requirements of the office which
has a negative effect on the res and the beneficiaries (see Matter of Kaunitz [lack of
understanding of his duties was reflected by, among other things , executor's exercise of
his personal sense of propriety in providing a tombstone for decedent's mother from estate
funds where there was no provision in the will to do so]).
The removal of a fiduciary is subject to the statutory authority conferred upon the
Surrogate (SCPA 711; see also Matter of Petrocelli, 307 AD2d 358 [2d Dept 2003]).
"Removal of a fiduciary constitutes a judicial nullification of the testator's choice and may
only be decreed when the grounds set forth in the relevant statutes have been clearly
established" (Matter of Duke, 87 NY2d 465 [1996]).
"Accordingly, the rule has long
prevailed that 'courts are required to exercise the power of removal sparingly and to nullify
the testator's choice only upon a clear showing of serious misconduct that endangers the
safety of the estate ... "' (Matter of Duke) .
Furthermore , the court has discretion to remove a fiduciary without a hearing only
where misconduct is established by undisputed facts or concessions (see Matter of Duke) .
Examples of such instances are where the fiduciary's in-court conduct causes such facts
to be within the court's knowledge (see 2 Warrens Heaton, Surrogate's Court,
§20.11 [3][a]) .
Based on the record and the controlling statutory and case law authority, the court
requires a hearing , and the motion and cross motion for orders granting summary judgment
are denied.
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
The trial court has broad discretion to supervise and regulate the pretrial discovery
process (see Lewis v Hertz, 193 AD2d 470 [2d Dept 1993]; Duracelllnt!., Inc. v Am. Empl.
Ins . Co., 187 AD2d 278 [1 st Dept 1992]). The court's determinations will not be disturbed
unless there is an abuse of that discretion (see Ulico Cas. Co. v. Wilson , Elser, Moskowitz,
Edelman & Dicker, 1 AD 3d 223 [2003] , rearg denied, 2004 NY App Div Lexis 1942 [1 st Dept
2004]).
Based on the record which demonstrates that Samuel agreed to pay for the services
provided by Dr. Bronheim , that part of Nancy's motion which requested that the doctor's
bill be paid, is granted. Those parts of Samuel's cross motion which requested an order
declaring Dr. Bronheim's report incompetent; requiring Nancy to submit to a further
psychiatric examination before Dr. Andrew Levin and execute HIPPA authorizations; and
extending the period to complete discovery, are denied.
Samuel and Nancy will have the opportun ity to present all relevant evidence at the
hearings (dates to be set) including any expert who may opine on their respective qualities
and fitness to continue serving as co-trustees.
Samuel is directed to file a note of issue and statement of issues by April11, 2016.
Nancy may file a counter-statement of issues by April25, 2016. The court also directs that
Nancy file a note of issue and statement of issues in the proceed ing which she filed to
revoke Samuel's letters by April 11, 2016. Samuel may then file a counter-statement of
issues in that proceeding by April 25, 2016. Thereafter, these proceedings will be placed
on the trial calendar for hearings.
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
The court directs that the attorneys for the parties appear for a conference on both
matters on May 10, 2016, at 2:00 p.m .
THIS IS THE DECISION AND ORDER OF THE COURT
The papers relied on are as follows:
1.
Notice of motion dated October 30, 2015 ;
2.
Affirmation of Evan S. Fensterstock, Esq ., dated October 30, 2015 , with
exhibits annexed;
3.
Affidavit of Teresa Bagley, sworn to on December 19, 2015;
4.
Affidavit of Fred Mausser, sworn to on December 19, 2015, with exhibit
annexed;
5.
Affidavit of Doreen Stephens, sworn to on December 21 , 2015, with exhibit
annexed ;
6.
Affirmation of Paul D. Jaffe, Esq., dated December 28, 2015 ;
7.
Affidavit of Dr. Harold Bronheim, sworn to on December 15, 2015 , with
exhibit annexed;
8.
Notice of cross motion dated November 30, 2015;
9.
Affirmation of Jerold W. Dorfman, Esq., dated November 30, 2015 , with
exhibits annexed ;
10.
Affidavit of Samuel Levitan, sworn to on November 28 , 2015 ;
11 .
Affirmation of Ilene Zwirn , M.D., dated November 23, 2015 , with exhibit
annexed;
12.
Affirmation of Lawrence Loeb, dated October 9, 2015, with exhibits annexed;
and
13.
Affirmation of Evan S. Fensterstock , Esq ., dated December 28, 201 5, with
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MATTER OF MICHAEL I. SILBERKLEIT
File No. 2008-2036/G
exhibits annexed ;
Dated: White Plain$, NY
March
)j
, 2016
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HON. THOrkAS E. WALSH V\.
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Acting Surrogate Westchester County
Jerold W. Dorfman, Esq.
131 Larchmont Avenue
Larchmont, NY 10538
Attorney for the petitioner
Fensterstock & Partners, LLP
100 Broadway
New York, NY 10005
Attorneys for the respondent
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