The Second Department determined summary judgment was properly granted in the objectants’ actions against the executor (Mahler) for breach of fiduciary duty and negligence. The executor sold the estate asset (real property) to an acquaintance for half of its value. The acquaintance sold the property for nearly double the purchase price:
A fiduciary acting on behalf of an estate is required to employ such diligence and prudence to the care and management of the estate assets and affairs as would prudent persons of discretion and intelligence in their own like affairs … . “[A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect” … . In performing his fiduciary duty as the executor of the decedent’s estate, Mahler was required to use good business judgment … . To the extent that the sale of the property does not meet this standard, the beneficiaries of the estate may seek to surcharge him … . “To obtain such a surcharge, it is not enough for the contestants to show that the representatives of the estate did not get the highest price obtainable; it must be shown that they acted negligently, and with an absence of diligence and prudence which an ordinary [person] would exercise in his [or her] own affairs” … . Matter of Billmyer, 2016 NY Slip Op 05994, 2nd Dept 9-14-16
TRUSTS AND ESTATES (SUMMARY JUDGMENT PROPERLY GRANTED IN ACTIONS AGAINST EXECUTOR FOR BREACH OF FIDUCIARY DUTY AND NEGLIGENCE)/FIDUCIARY DUTY, BREACH OF (SUMMARY JUDGMENT PROPERLY GRANTED IN ACTIONS AGAINST EXECUTOR FOR BREACH OF FIDUCIARY DUTY AND NEGLIGENCE)/EXECUTORS (SUMMARY JUDGMENT PROPERLY GRANTED IN ACTIONS AGAINST EXECUTOR FOR BREACH OF FIDUCIARY DUTY AND NEGLIGENCE)