In re Estate of Vitale , 68 A.D.2d 928 ( 1979 )

The appeal is from an order of the Surrogate’s Court, Queens County, dated July 26, 1978, which denied William Cerrone’s motion, brought pursuant to SCPA 809, inter alia, for leave to commence an action or proceeding on a fiduciary’s surety bond. Order affirmed, without costs or disbursements. We agree with the Surrogate that an action directly on the surety bond is not warranted under these circumstances (see United States v Westchester Fire Ins. Co., 478 F2d 133, 138; see, also, 10A Cox-Arenson-Medina, NY Civ Prac, Dec., 1978 Cum Supp, § 809.01, p 74). The creditor’s remedy is to seek the appointment of a successor administrator, c. t. a., pursuant to SCPA 1418, and, upon such appointment, to commence a proceeding pursuant to SCPA 2102 (subd 4). Hopkins, J. P., Damiani, Rabin and Mangano, JJ., concur.