(a) Motion; new undertaking; accounting. Surety on the undertaking of any fiduciary may move with notice to the person upon whose behalf the undertaking was given, to be discharged from liability for any act or omission of such fiduciary subsequent to the order of the court or the time when a new undertaking satisfactory to the court is filed. The court may restrain such fiduciary from acting pending the order discharging such surety from liability. Upon the hearing, the court shall order the fiduciary to give a new undertaking and to account, within such time as the court orders but not exceeding twenty days, for all his acts. If a new undertaking is filed the fiduciary shall account for his acts up to and including the date of such filing. Where the fiduciary does not comply with the order to account, the surety may make and file such account with the same effect as though filed by the fiduciary, and may utilize any disclosure device in obtaining information necessary for such an accounting. The court shall make such provisions with respect to commissions, allowances, disbursements and costs as it deems just.
§ 2510.Discharge of surety on the undertaking of a fiduciary
Article 25. Undertakings · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 2510 lets a fiduciary's surety move to be discharged from liability for the fiduciary's future acts, triggering a court-ordered accounting and a settlement of that account before the surety is formally relieved of ongoing responsibility.
Full Text of CPLR 2510
(b) Settlement of account. When such account has been filed, the court, upon sufficient notice, shall order all persons interested in the proceedings to attend a settlement of the account at a time and place specified, and such settlement shall be made and the rights and liabilities of all parties to the proceeding shall be determined and enforced. After settlement of the account, the court shall make an order relieving the surety from any act or omission of the fiduciary subsequent to the date of such order or the time when a new undertaking satisfactory to the court was filed, whichever is earlier. Upon written demand by the fiduciary, the surety shall return any compensation paid for the unexpired portion of such suretyship.
Plain-English Summary
A surety who backs an executor, administrator, guardian, or other fiduciary does not have to remain exposed to that fiduciary's conduct forever. CPLR 2510(a) lets the surety move, on notice to the person for whose benefit the undertaking was given, to be discharged from liability for the fiduciary's acts or omissions going forward — from the date of the court's order, or the date a satisfactory new undertaking is filed. The court can restrain the fiduciary from acting while the motion is pending, and once it holds the hearing, it orders the fiduciary to give a new undertaking and to account for all acts within a period the court sets, capped at twenty days. If the fiduciary refuses to account, the surety can file the account instead, using any available disclosure device to gather what is needed.
Subdivision (b) walks the process to its conclusion. Once the account is filed, the court orders everyone interested in the proceeding to attend a settlement at a set time and place, and that settlement fixes and enforces every party's rights and liabilities. Only after settlement does the court issue the order relieving the surety, effective as of the earlier of the original order date or the date the new undertaking was filed. If the fiduciary already paid for coverage running past that date, the fiduciary can demand the surety return the unearned portion of that payment.
Frequently Asked Questions
Can a surety get out of liability for a fiduciary's future conduct?
Yes. CPLR 2510(a) allows the surety on a fiduciary's undertaking to move for discharge from liability for the fiduciary's acts or omissions after the date of the court's order or a satisfactory new undertaking, whichever comes first.
What does a fiduciary have to do when the surety moves to be discharged?
The court orders the fiduciary to give a new undertaking and to account for all acts within a period the court sets, not exceeding twenty days.
What if the fiduciary refuses to file the required account?
The surety may file the account instead, using any available disclosure device to obtain the information needed, under CPLR 2510(a).
When is the surety relieved of liability?
Only after the account is settled under CPLR 2510(b); the resulting order relieves the surety from the fiduciary's acts or omissions as of the earlier of the date of the original order or the date the new undertaking was filed.
Can a fiduciary get money back if the surety is discharged early?
Yes. CPLR 2510(b) allows the fiduciary to demand the surety return any compensation paid for the unexpired portion of the suretyship.
Advisory Committee Notes
Subd (a) of this section is derived from subds 1, 2, 3 and 4 of CPA § 158. The provision which limited discharge as of right to sureties on fiduciary undertakings has been retained, since to allow sureties on appeal, injunction, attachment, replevin, and other undertakings given as part of judicial proceedings to be discharged by the court as of right would defeat the object of these undertakings. The term “fiduciary” as used here is intended to denote all those persons intended to be covered by the first sentence of former § 158(1), excluding all undertakings used to secure a stay or any other judicial remedy. The general motion procedure prescribed by CPLR article 22 applies. Notice of motion is served as provided by CPLR rule 2103. Under subd (b) of that rule the court may direct service in ways other than those specified, so that present law is unchanged. The court is not limited in its power to order the undertaking filed within the five-day period found in former § 158(3) and thus may react more flexibly to particular situations. Since the sureties on the original undertaking are not discharged from liability until a new undertaking is given or until the estate is protected in some other manner by the court, no undue harm to the estate would result where the court gives the principal an extension of time in which to file his new undertaking. Where it becomes necessary for the surety to make and file the account, this subdivision provides disclosure devices to aid in the discovery of the facts. CPA § 158 closely parallels § 109 of the Surrogate’s Court Act, providing for release of surety, and it has been held that the sections are identical in meaning. In re Schacne’s Estate, 172 Misc 443, 15 NYS2d 501 (Surr Ct 1939). Such a provision is necessary in the rules of civil practice to govern those fiduciaries not falling within the jurisdiction of the Surrogate’s Court. The provision of former law which permitted the surety to be discharged as of right has been held to preclude the court from requiring the surety to bear the costs and expenses of the discharge proceedings. Matter of Middlebrook, 280 NY 380, 21 NE2d 360 (1939). The Court of Appeals has indicated doubt about the wisdom of that rule, but has felt itself bound by the precise language of the statute. Id. at 384, 21 NE2d at 362; see also In re Calcagnini’s Estate, 178 Misc 215, 33 NYS2d 599 (Surr Ct 1942). If the surety has an absolute and unconditional right to the relief provided by that rule, an estate might be compelled unjustly to pay for several accountings a year. It would seem that where all the necessary steps have been unreasonably forced by the surety’s application for a discharge, the surety should pay the expenses thus incurred in its behalf. Recognizing, however, that the equitable solution to this problem usually lies in the facts of the individual case, the last sentence of subd (a) of this section provides that the burden of costs and expenses shall fall where the court deems just.
Subd (b) of this section is derived from subd 5 of CPA § 158. This subdivision omits as unnecessary the requirement that the accounting be in “like manner and to the same extent as in actions for an accounting in the supreme court.”
Amendment History
Add, L 1962, ch 308, § 1, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: discharge surety fiduciary New Yorksurety executor administrator liabilityfiduciary accounting surety dischargeNew York estate surety bond release