In re the Estate of Halperin — 76 Misc. 2d 1012

Majority

p. 1012

In the Matter of the Estate of John Halperin, Deceased.

Surrogate’s Court, Nassau County,

February 15, 1974.

Moses & Singer for petitioner.

This is an application for authorization under SCPA 2108 by the two executors to continue the real estate brokerage business of the decedent in corporate form for up to 120 days after the death which occurred on November 5, 1973.

SCPA 2108 provides for continuation of a business “ other than a profession ’ ’ of which the decedent had been a full owner. Entertainment of the petition is in the discretion of the Surrogate and prescribes restrictions, conditions -or requirements

p. 1013

designed to protect the estate, more particularly where the business is to be continued “ in other than corporate form ” (SCPA 2108, subd. 4). SCPA 2108 is the successor to section 215-a of the Surrogate’s Court Act and apparently was not intended to effect any change of substance. Like SCPA 2108, section 215-a of the Surrogate’s Court Act excluded a “profession” in its opening lines, but apparently the Legislature did not consider a real estate brokerage business as a profession inasmuch as subdivision 8 of section 441-a of the Real Property Law grants direct authority to the Surrogate to continue a real estate brokerage license for a period of not more than 120 days from the date of death of a licensee. That subdivision used to be numbered 9 and was renumbered 8 (L. 1971, ch. 787, § 2).

Obviously due to an oversight the Legislature did not change the reference in its subdivision from section 215-a of the Surrogate’s Court Act to SCPA 2108 but the intent was clearly to continue the Surrogate’s authorization and not to change the procedure.

The court accordingly grants this application observing that since the business was conducted by the decedent in corporate form, there is no occasion to provide in the decree for the extent of the liability of the assets of the business vis-a-vis the assets of the estate for debts and liabilities arising out of the continuation of the business, but the attention of the fiduciaries and their counsel is directed to all of the provisions of SCPA 2108 and of the Real Property Law with respect to continuing the business in question.