§ 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.