Petitioner was never appointed administrator, fiduciary or other legal representative of the conservatee. Rather, he was only directed by the IAS court, in a prior order, to marshal the conservatee's assets, which does not amount to appointment as a fiduciary (see, EPTL 1-2.7 Est. Powers Trusts, 11-1.1 Est. Powers Trusts [b]). While the Supreme Court has jurisdiction concurrent with the Surrogate's Court, that jurisdiction should be exercised sparingly in the absence of special circumstances (Matter of Moody, 6 A.D.2d 861). There are no special circumstances in this case, and it was not an abuse of the IAS court's discretion to leave to the Surrogate the appointment of a legal representative for the conservatee's estate.
The unpublished decision and order of this Court entered herein on December 17, 1991, is hereby recalled and vacated.
Concur — Milonas, J.P., Asch, Kassal, Smith and Rubin, JJ.