In re Estate of Mancuso

Order unanimously reversed on the law without costs, petition reinstated and matter remitted to Erie County Surrogate’s Court for further proceedings in accordance with the following Memorandum: Surrogate’s Court erred in summarily denying the petition seeking property in the possession of the administratrix. The petition alleged that the administratrix is in possession of 36 items of personal property belonging to petitioner and has refused to deliver those items to petitioner. The administratrix denied the allegations in the petition, but at oral argument indicated a willingness to deliver certain items of personal property to petitioner. Pursuant to SCPA 2105, a person with a claim to property alleged to be in the possession or under the control of a fiduciary may petition the court for an order requiring the fiduciary to deliver that property. Because the court, upon return of process, failed to adjudicate the respective interests of the parties in the property and issue a decree (see, SCPA 2105 [3]), we reinstate the petition and remit the matter to Erie County Surrogate’s Court for that purpose. (Appeal from Order of Erie County Surrogate’s Court, Mattina, S. — Compel Delivery of Property.) Present — Lawton, J. P., Wesley, Callahan, Balio and Davis, JJ.