In an action to recover damages for personal injuries and for wrongful death, the defendant (hereinafter Standard) appeals from so much of an order of the Supreme Court, Kings County, dated December 16, 1985, as, inter alia, denied its cross motion to dismiss the complaint as against it.
The decedent initially commenced this action for personal injuries against the defendant Standard, claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent’s daughter, to be substituted as the plaintiff in place and stead of her father in her capacity as the executrix of his estate and to amend the original complaint to include a cause of action for her father’s alleged wrongful death. Special Term denied Standard’s cross motion to dismiss the complaint as against it, rejecting Standard’s argument that the Surrogate’s Court, Kings County did not have the power to declare the executrix of her father’s estate and probate his will since he was a domiciliary of Florida at the time of his death.
Pursuant to SCPA 204, when the jurisdiction of a court is called into question in a collateral proceeding, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established by an allegation of the jursidictional facts contained in a verified pleading. Contrary to Standard’s assertion, there were no fraudulent statements in the petition. While the petition alleged that the decedent was a domiciliary of Kings County, it also indicated that decedent had died in a Florida nursing home. In addition, annexed to the petition were papers intended to inform the Surrogate of the decedent’s connection with Florida. Thus, the Surrogate was supplied with all of the relevant facts, and in the absence of fraud, the defendant has no standing in a collateral proceeding to have the determination overturned.
The court said that standard’s alternative argument for dismissal of the action is equally unavailing. The proposed amended complaint sets out a sufficient cause of action for wrongful death. In any event, Standard advances arguments more appropriately considered on a motion for summary judgment. If this is indeed what Standard was seeking, its cross motion was premature as issue had not yet been joined (CPLR 3212[a]).
Finally, Special Term properly retained jurisdiction over the action to recover damages for personal injury and wrongful death, as the instant lawsuit involves independent matters involving controversies between living persons and not matters affecting the estate of the decedent.
In a contested probate proceeding, the petitioner, who is the executor named in the will; the testator’s widow, and several of the legatees and beneficiaries under testator’s will and codicils, appeal from so much of a second amended decree of the Surrogate’s Court, Kings County, entered March 21, 1963 after a nonjury trial upon the Surrogate’s opinions, as denied probate to the paper writing, dated April 30, 1959, which was propounded as the third codicil to the testator’s will. Decree, insofar as appealed from by the respective parties, affirmed, with costs to the petitioner and to the contestants’ payable out of the estate.
A testator’s wishes regarding the appointment of a fiduciary will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Courts will not lightly set aside a decedent’s choice of fiduciary. “Decedent’s selection of a fiduciary must be given great deference and the power of the court to deny the issuance of letters to a nominated fiduciary is strictly circumscribed by statute. Courts should nullify a testator’s choice only upon a clear showing of serious misconduct that endangers the safety of the estate. Unless the nominated fiduciary is disqualified under SCPA 707, he cannot be denied letters”.
Accordingly, the court held that the order is affirmed insofar as appealed from, with costs.
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