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Decided on May 16, 2006
Sur Ct, Nassau County

282879

Christopher P. Ronan, Esq. (Attorney for Respondent, Howard Leistner)
McCoyd, Parkas & Ronan, LLP, 1100 Franklin Avenue, Garden City, NY 11530
Holland & Knight, LLP (Attorney for Petitioner, Gilbert Leistner)
195 Broadway, New York, NY 10007-3189
John B. Riordan, J.

This is a motion to dismiss an application for limited letters of administration. The movant is Howard Leistner. The motion is opposed by Gilbert Leistner, the petitioner in the underlying proceeding.
The decedent, William E. Leistner, died on September 19, 1993. He was survived by a spouse, Sondra Jacoby Leistner, and three children from a prior marriage, Howard Leistner, Gilbert Leistner and Hedi Leistner. The decedent's Last Will and Testament made various pre-residuary bequests and the residuary was divided equally between the decedent's three children. The co-executors prepared an informal accounting in 1997 and the decedent's children signed "receipt and release[s] with account annexed".
On or about June of 2005, Gilbert Leistner filed a petition for limited letters pursuant to SCPA
702. Gilbert Leistner alleged that he recently discovered information which revealed that the decedent owned assets located outside of the United States which were not collected and distributed by the co-executors. The petitioner averred that only a fiduciary of the estate can pursue a claim to the property and that the co-executors "have declined to investigate or initiate any proceedings for the collection of the assets" (Petition for Limited Letters, paragraph 5). For this reason, the petitioner asks that he be given limited letters of administration to commence a proceeding in Switzerland to recover the allegedly converted assets.
By way of background, it is uncontroverted that the decedent was the sole shareholder of Carbon Organics Corporation, a Panamanian corporation which was established with the Swiss Bank Corporation and managed by a Swiss attorney (see Affirmation in support of Respondent's Motion to Dismiss the Petition, paragraph 13). On or about February 27, 1989, the decedent allegedly executed a power of attorney in which he gave Howard Leistner the authority to represent the decedent with regard to Carbon Organics Corporation. The power of attorney also included the authority of the attorney to make dispositions in his own favor. The document further provided that "[i]t shall remain in force notwithstanding [the decedent's] death or incapacity" and that it shall be governed by Swiss law.
According to Howard Leistner, in accordance with the decedent's wishes, Howard Leistner used the Swiss power of attorney to transfer assets from the Carbon Organics Corp. account. Howard Leistner further alleges that he distributed the assets of Carbon Organics Corp. in 1993 and that Gilbert Leistner and Hedi Leistner both signed releases regarding the distribution. The releases provided that "[a]ll disputes which may arise at any time hereafter under or in connection with this Declaration and Release shall be finally settled by arbitration in [*2]Geneva, Switzerland".
Gilbert Leistner now contends that Howard Leistner may have converted funds in Switzerland which belonged to the decedent. Howard Leistner moves for dismissal of the petition on the following grounds: the statute of limitations has run; the proceeding is unnecessary as Gilbert Leistner can commence a proceeding in his own name in Switzerland; and the proceeding was brought in bad faith. Both parties have attached affidavits from Swiss
attorneys in which contrary views are reflected regarding the statute of limitations and whether and individual not in a representative capacity can commence the proceeding.
The Surrogate's Court continues to exercise complete and full jurisdiction over all matters relating to estates and the affairs of decedents (SCPA 201(3); Matter of Piccione, 57 NY2d 278 [1982]). Moreover, SCPA 702 provides that limited letters may be granted to, inter alia, commence or maintain an action against any one against whom the fiduciary fails to bring a proceeding (SCPA 702 [9]) or to any other purpose deemed by the court to be appropriate or necessary (SCPA 702[10]). The grant of letters is discretionary (Matter of Vasquez, 162 Misc 2d 184 [1994]; Matter of Stoller, 4 Misc 3d 538 [2004]). The "minimum quantum of proof needed to commence such a proceeding ...is the submission of allegations made merely upon information and belief'" (Matter of Berger, NYLJ, Feb. 10, 2004 at 27). Further, the granting of limited letters "does not resolve the various contested factual issues concerning the validity of the transfers. It only allows inquiry into those transactions" (Matter of Oppmann, NYLJ, Nov. 30, 2001 at 21).
In the instant proceeding, the petitioner has asked for limited letters to pursue a proceeding in Switzerland to return assets of the decedent's which were allegedly converted by Howard Leistner. Although there are questions regarding the statute of limitations, the validity of transfers made pursuant to a power of attorney and the possible validity of releases executed in 1993, all of these issues will be addressed by the courts in Switzerland. For all of these reasons,
the motion to dismiss the petition for limited letters is denied. The petition for limited letters is granted.
Settle order.
Dated: May 16, 2006______________________
John B. Riordan
Judge of the Surrogate's Court
The appearances of counsel is as follows:

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