In re Estate of Guzzo , 739 N.Y.S.2d 615 ( 2002 )

In a proceeding pursuant to SCPA 809 (1) for leave to commence an action or proceeding against the respondent United States Fire Insurance Company to recover on a bond it issued to the administrator of the estate of Michael L. Guzzo, the petitioners appeal from an order of the Surrogate’s Court, Nassau County (Riordan, S.), dated February 26, 2001, which denied their application.

Ordered that the order is affirmed, with costs.

Contrary to the petitioners’ contention, the Surrogate’s Court properly denied their application for leave to commence an action or proceeding pursuant to SCPA 809 (1) against the respondent United States Fire Insurance Company to recover on a bond it issued to the administrator of the estate of Michael L. Guzzo. A fiduciary’s liability must first be determined by the Surrogate’s Court before a surety’s liability under the bond can attach (see SCPA 809; Matter of Zipser, 270 AD2d 279, 280; Matter of Aquino, 186 Misc 7, affd 271 App Div 780; cf. United States v Westchester Fire Ins. Co., 478 F2d 133). Here, the Surrogate’s Court had not independently determined Robert Guzzo’s liability as the administrator of the estate before the petitioners’ application for leave to proceed under SCPA 809 (1). Accordingly, the Surrogate properly denied the petition. Smith, J.P., Goldstein, McGinity and H. Miller, JJ., concur.