In re Horowitz ( 1986 )

Appeal by the Sag Harbor Savings Bank from so much of an order of the Surrogate’s Court, Suffolk County (Signorelli, S.), dated July 9, 1985, as sua sponte directed the bank to replace funds removed from a guardianship account by the appointed guardian without court authorization.

Order reversed insofar as appealed from, on the law, without costs or disbursements, and proceeding insofar as it is asserted against the appellant dismissed.

The challenged order constituted an improper exercise of jurisdiction over the appellant bank. Pursuant to SCPA 203, a special proceeding is commenced by the filing of a petition; the requirement is not dispensed with or waived where the party appears before the Surrogate pursuant to the court’s notice of a scheduled conference. Moreover, the order appealed from in effect constitutes a judgment against the appellant, entered in violation of the appellant’s due process rights to notice and an opportunity to be heard.

A guardian ad litem should be appointed to protect the interests and property of the infants, which individual may, if he be so advised, then commence a proceeding against the bank and any other appropriate persons. Thompson, J. P., Niehoff, Eiber and Spatt, JJ., concur.