Matter of Gerlach (Marino)
Docket File No. 0234/07B, 0234/07H|Appeal No. 6414|Case No. 2025-01851|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Other
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02372
- Docket numbers
- File No0234/07B, 0234/07HAppeal No6414Case No2025-01851
Appeal from an order of Surrogate's Court denying objectant's motion for summary judgment to sustain objections to an executor's accountings
Summary
The Appellate Division, First Department affirmed the Surrogate's Court order denying objectant Michael Marino’s motion for summary judgment challenging executor Janet Marino Gerlach’s accountings for two accounting periods. The court held objectants failed to prove, as a matter of law, that Gerlach’s decisions caused financial loss, that she overpaid herself fees, or that she failed to withhold estate tax to certain beneficiaries. The court found triable issues of fact based on Gerlach’s investment strategy, will provisions granting broad discretion, competing expert opinions on fees, and an attorney affidavit about tax withholding, so summary judgment was inappropriate.
Issues Decided
- Whether objectants established as a matter of law that the executor's alleged negligence caused financial loss to the estate
- Whether the will's grant of discretion to the executor precludes liability under the prudent-investor/standard-of-care analysis
- Whether objectants established as a matter of law that the executor overpaid herself management and broker's fees
- Whether objectants established as a matter of law that the executor failed to withhold estate tax attributable to certain bequests
Court's Reasoning
The court held that objectants did not meet the burden for summary judgment because they failed to show causation of financial loss and other elements as a matter of law. The executor offered evidence that her renovation-and-wait strategy was a reasonable investment approach and that the will granted broad discretion to retain property, which raised triable factual issues. Competing expert testimony on customary management and broker fees and an attorney affidavit about tax withholding likewise precluded resolving fee and tax-withholding disputes on summary judgment.
Authorities Cited
- Matter of Bankers Trust Co. (Siegmund)219 AD2d 266 (1st Dept 1995), affd sub nom. In re Bankers Trust Co., 87 NY2d 1055 (1996)
- Matter of Janes90 NY2d 41 (1997)
- Matter of HSBC Bank USA, NA (Knox)98 AD3d 300 (4th Dept 2012), lv dismissed, 20 NY3d 1056 (2013)
Parties
- Respondent
- Janet Marino Gerlach
- Appellant
- Michael Marino
- Respondent
- Christopher Marino
- Judge
- Rita M. Mella
- Judge
- Renwick, P.J.
- Judge
- Friedman
- Judge
- Gesmer
- Judge
- Pitt-Burke
- Judge
- Hagler
Key Dates
- Decision date
- 2026-04-21
- Surrogate's Court order (entered)
- 2025-02-19
What You Should Do Next
- 1
Prepare for trial or further proceedings
Parties should gather and exchange documentary evidence, expert reports, and witness statements to address the factual disputes identified by the court.
- 2
Consider additional motions or clarifications
If appropriate, objectants may move in Surrogate's Court for targeted discovery or other relief to narrow the issues before trial.
- 3
Consult probate/estate counsel about fee and tax records
Both sides should review estate accounting records, fee agreements, tax filings, and the attorney affidavit concerning withholding to prepare factual proof.
- 4
Evaluate appellate options
A party considering further appeal should consult counsel promptly to assess prospects for leave to appeal to the Court of Appeals and applicable deadlines.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed the denial of summary judgment, meaning the executor's actions and fees will not be resolved now and disputed factual issues remain for further proceedings.
- Who is affected by this decision?
- The estate of Edward J. Marino, executor Janet Gerlach, and objectants (including Michael Marino and other beneficiaries) are directly affected because the accounting disputes continue.
- What happens next in the case?
- Because summary judgment was denied, the issues the objectants raised—loss causation, fee claims, and tax withholding—remain for trial or further factual proceedings in Surrogate's Court.
- Why didn’t the court find the executor automatically liable?
- The court found the executor presented evidence that her renovation-and-sale strategy was reasonable, the will gave her broad managerial discretion, and there were competing expert opinions and an attorney affidavit, all of which create factual disputes.
- Can the decision be appealed further?
- Yes; the decision of the Appellate Division can be subject to further review by the Court of Appeals, but that would generally require permission (leave) to appeal.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Matter of Gerlach (Marino) - 2026 NY Slip Op 02372 Matter of Gerlach (Marino) 2026 NY Slip Op 02372 April 21, 2026 Appellate Division, First Department In the Matter of Accounting by Janet Marino Gerlach, Executor of the Will of Edward J. Marino, Deceased, for the Period of December 22, 2006 to December 31, 2012. In the Matter of Accounting by Janet Marino Gerlach, Executor of the Will of Edward J. Marino, Deceased, for the Period of January 1, 2013 to March 31, 2019. In the Matter of Janet Marino Gerlach, Respondent, Michael Marino, Respondent/Objectant-Appellant, Christopher Marino, Respondent/Objectant. Decided and Entered: April 21, 2026 File No. 0234/07B, 0234/07H|Appeal No. 6414|Case No. 2025-01851| Before: Renwick, P.J., Friedman, Gesmer, Pitt-Burke, Hagler, JJ. Law Office of Andrew Ross, Shelter Island (Andrew P. Ross of counsel), for appellant. Greenfield Stein & Senior, LLP, New York (Amy F. Altman of counsel), for respondent. Amended Decision and Order, Surrogate's Court, New York County (Rita M. Mella, S.), entered February 19, 2025, which, to the extent appealed from as limited by the briefs, denied objectant Michael Marino's motion for summary judgment sustaining certain objections to petitioner Janet Marino Gerlach's accountings as executor of the Estate of Edward J. Marino, unanimously affirmed, without costs. The court properly denied objectants' motion for summary judgment because objectants did not show, as a matter of law, that any financial loss resulted from petitioner's alleged negligence or her alleged "failure to exercise that degree of care which prudent persons of discretion and intelligence in such matters employ in their own affairs" ( Matter of Bankers Trust Co. [Siegmund] , 219 AD2d 266, 272 [1st Dept 1995], app dismissed sub nom. In re Bankers Trust Co, 87 NY2d 1055 [1996]). Objectants established prima facie that the corporations that owned the real property operated at a significant loss and that the fair market value of those real properties consistently declined in value during the five years after decedent's death, which petitioner did not dispute. However, petitioner raised a triable issue of fact by arguing that her investment strategy of renovating the properties and selling them when the real estate market improved was reasonable and resulted in significant gains ( see Matter of Janes , 90 NY2d 41, 50 [1997]). Moreover, Articles V(D) and XIII(G) of the will afforded petitioner broad discretion in connection with management decisions and authorized her to retain the properties "for any period of time whatsoever." The prudent investor standard of care has "always been deemed subordinate to the provisions of the governing instrument" ( Matter of HSBC Bank USA, N A [Knox], 98 AD3d 300, 310 [4th Dept 2012], lv dismissed sub nom. Matter of Judicial Settlement of the Intermediate Account of HSBC Bank USA, NA, 20 NY3d 1056 [2013]). The court's reliance on Article XIII(G) of the will was not in error because that provision was not void as against public policy under EPTL 11-1.7. Article XIII(G) did not exonerate petitioner from liability for negligence but merely provided her with the discretion to refrain from selling the real property at any time. In any event, the court did not exclusively rely on the provisions of the will but rather cited other reasons to support its conclusion that petitioner presented sufficient evidence to raise a triable issue of fact. The court properly concluded that objectants failed to demonstrate prima facie that petitioner overpaid herself management and broker's fees and, even if they had met that standard, petitioner presented sufficient evidence to raise a triable issue of fact. Petitioner stated that she received management and broker's fees during decedent's lifetime and continued to render those services when she became executor of the Estate. Moreover, her expert disagreed with objectants' expert as to the standard rate of compensation for the management services in the area where the real property was located. An executor who performs services that are beyond their executorial duties may be compensated for those extra services, including real estate broker's commissions ( see Matter of Tuttle , 4 NY2d 159, 167 [1958]). Finally, the court correctly found that objectants did not demonstrate as a matter of law that petitioner failed to withhold the estate tax attributable to the bequests to five named beneficiaries. In any event, petitioner raised a triable issue of fact based on the affidavit of her attorney that the estate taxes were in fact withheld from the distribution to the five named beneficiaries. We have considered objectants' remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 21, 2026