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Decided on October 12, 2007
Sur Ct, Bronx County

90-A/1992
Carl Lucas, Esq., for S.R.J. DiNapoli, administratrix
Dominick J. DiNapoli, objectant, pro se
Lee L. Holzman, J.
In this accounting proceeding, the administratrix moves pursuant to CPLR 3216 for an order dismissing the objectant's objections and supplemental objections with counterclaims for his failure to prosecute the issues raised in his pleadings and file a note of issue. The objectant, pro se, contends that his disabilities prevent him from proceeding with this litigation for at least one year and that the court should appoint a pro bono attorney for him.
The decedent died on October 18, 1991, survived by six children. The acrimonious litigation between the administratrix, the decedent's daughter, and the objectant, the decedent's son, before this and other courts has prolonged the administration of the estate. Most of the litigation flowed from the administratrix's ultimately successful efforts in evicting the objectant from real property where he resided and worked and then selling the decedent's interest in the realty (see DiNapoli v DiNapoli, 1995 WL 555740,1995 US Dist LEXIS 13522 [SDNY Sept. 19, 1995]; Matter of DiNapoli, 210 AD2d 42 [1994], lv denied 85 NY2d 804 [1995]; Matter of DiNapoli, NYLJ, May 8, 1996, at 30, col 3; Matter of DiNapoli, NYLJ, Feb. 22, 1994, at 30, col 4). In those prior proceedings, the objectant either appeared pro se or was represented by various counsel. When the counsel who represented the objectant pro bono sought to be relieved, the objectant contended that the pro bono representation was inadequate and that the law firm should be permitted to withdraw provided that it agree to pay for the services of another counsel of his choice (Matter of DiNapoli, NYLJ, May 8, 1996, supra).
Following the sale of the Bronx realty, the administratrix filed an account on August 5, 1996 for the period from October 18, 1991 to June 6, 1996, indicating that the gross value of the estate was $103,536.10, and the net value, after deducting the paid funeral and administration expenses listed on Schedule C, was $60,761.95. The administratrix seeks reimbursement of unpaid administration expenses totaling $13,109.15 and labor costs of $7,800, allegedly incurred in preparing the realty for sale. On Schedule G, the administratrix seeks to charge certain of the costs, legal fees and expenses of prior litigation against the objectant's one-sixth distributive share. The administratrix amended the account to add that she also sought to recover the sum of $10,200 from the objectant [*2]for his occupancy of the real property from October 18, 1991 through April 1994, at the rate of $400 per month.
In objections filed on January 24, 1997 and supplemental objections filed on September 16, 1997, the objectant disputes virtually every aspect of the account, as amended, alleging, inter alia, that: (1) the decedent owned a 100% interest in the real property (the account reflects that the decedent had a 60% interest and her daughter, Marie, owned a 40% interest); (2) the real and personal property belonging to the estate were sold at below market value; (3) monies were improperly withdrawn from two bank accounts; (4) the account fails to include all payments he made for use and occupancy of the Bronx property; (5) in any event, he was improperly charged for his use and occupancy as any such obligation was offset by his payment of utilities; (6) the administratrix failed to charge Marie for her use and occupancy of the Bronx realty, as Marie has no interest in that realty; (7) he was never reimbursed for his partial payment of the decedent's funeral expenses; (8) legal fees, disbursements and other items are not properly chargeable to the estate; (9) the closing costs and expenses of sale were actually only about half of what is now sought; and, (10) the administratrix was previously directed to pay the first two months' storage fees for his personal property upon his eviction and her failure to do so resulted in the storage company's improper retention of his property.
The objectant's six counterclaims seek: (1) the sum of $2,619.70 for his partial payment of the decedent's funeral expenses; (2) the sum of $41,100 for his maintenance of the Bronx real property;
(3) all legal fees he expended to date; (4) the sum of $22,500 on a judgment which is not annexed, allegedly issued against his sister by the Civil Court, Bronx County, on August 13, 1996, including costs and interest from that date; and, (5) damages of $75,000 for lost earnings and devalued personal property, based upon the administratrix' failure to pay two months of storage fees, causing a forced sale of his personal property.
On June 2, 1997, this court directed that any party could place the matter on the ready for trial calendar upon compliance with Uniform Rules for Surrogate's Court (22 NYCRR)

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