In re the Estate of Marceca

Appeal from order, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about March 9, 2004, which, to the extent appealed from, dismissed the petition for turnover of assets held by respondents, unanimously dismissed, without costs, as academic.

At the time this petition was served, petitioners were contingent creditors (see Debtor and Creditor Law § 270) based on an action against a former coexecutor of the estate, in which it was alleged, inter alia, that the coexecutor had usurped an estate opportunity to invest in Kings County property. Petitioners now allege that an asset obtained by exploiting an opportunity that should have been the estate’s was fraudulently conveyed by the former coexecutor to respondents. A judicial hearing officer has now found that the Kings County investment was never an estate opportunity, and respondents have *260moved to confirm that report. Inasmuch as petitioners will not be deemed creditors in connection with the subject asset, their appeal from the order dismissing the petition is academic. Concur—Mazzarelli, J.P., Ellerin, Nardelli, Williams and Catterson, JJ.