N.Y. Surrogate's Court Procedure Act § 2108: Proceeding by fiduciary for continuation of a business A fiduciary may petition for the continuation of a business other than a professio...

§ 2108. Proceeding by fiduciary for continuation of a business

A fiduciary may petition for the continuation of a business other than

a profession, of which decedent or the person whose estate is being

administered was sole owner and it is desired to continue it for the

best interests of the estate; provided, however, that a fiduciary may

petition for the continuation of a deceased dentist's practice for a

period not to exceed eight months, if such practice is continued by a

person licensed to practice dentistry in this state. In such proceeding:

1. If the petition be entertained the court may make an intermediate

order without notice authorizing continuance of the business pending the

return of process and final decree.

2. Any respondent may serve and file an answer within 8 days after

the return of process or such further time as the court directs. After

inquiring into the facts and hearing the parties, if the court is

satisfied the best interests of the estate require the continuation of

the business, it may make a decree accordingly.

3. The decree may provide such restrictions, conditions or

requirements and such incidental relief, including a direction or

permission for incorporation of the business, as the court may order.

4. Whenever a fiduciary shall be authorized under this section to

continue a business in other than corporate form the decree shall

provide for the extent of the liability of the assets of the business

and the assets of the estate apart from the assets of the business for

debts and other liabilities arising out of its continuance. The court

may make such directions in this regard as it deems advisable in the

circumstances. The decree shall further provide for the period of time

for continuance.

5. If under a decree granted under this section a fiduciary shall

continue and carry on a business other than in corporate form he shall

file a certificate of doing business under an assumed name pursuant to

the provisions of section one hundred thirty of the general business

law. The certificate shall include in addition to the other matters

required by that section a statement showing the fiduciary capacity in

which he is conducting and carrying on the business and the extent to

which the debts and other liabilities incurred in the continuance are to

be chargeable to the assets of the estate as provided in the decree.

The fiduciary shall be relieved of personal liability if acting within

the authority granted and having filed the certificate above provided,

but shall be liable only in a fiduciary capacity. Any person having a

claim, demand or cause of action arising out of or in connection with

the conduct of the business after the filing of the certificate above

provided shall thereafter be limited in the payment or satisfaction of

such claim, demand or cause of action to such assets as are made

available for the payment or satisfaction of debts and liabilities in

the decree, provided, however, that nothing herein contained shall

relieve the fiduciary from personal liability for the consequences of

his own wrongful act or negligence in the continuance of the business

and provided further that nothing herein contained shall render

ineffectual any provision in a will or other instrument directing or

permitting the continuance of a business.

6. Unless otherwise provided in the decree all funds collected and

received in continuing and carrying on the business of a decedent shall

at all times be kept separate and apart from the funds in the hands of

the fiduciary forming part of the general assets of the estate as a

whole.

7. Notwithstanding the foregoing provisions, any creditor or person

interested may at any time apply to the court for an order requiring the

fiduciary to discontinue and wind up the business and the court may

thereupon make such order as to it appears for the best interests of the

estate, the creditors and all persons interested.