IN RE: FINAL ACCOUNTING (2001)

Order, Surrogate's Court, New York County (Eve Preminger, S.), entered on or about December 7, 1999, which granted the Trustees' motion for summary judgment dismissing appellants' objections filed against the Trustees' final account, unanimously affirmed, with costs.

The showing made by appellants, the remainder beneficiary of the Trust and the executor of the estate of the lifetime income beneficiary of the Trust, was insufficient to create a question of fact as to whether the Trustees breached their duty of care to either the income beneficiary or the remainder beneficiary during the period covered by the current account, March 14, 1990 through October 31, 1998, or that any such breach of duty caused a loss (see, Matter of Goldstick, 177 A.D.2d 225, 237, 581 N.Y.S.2d 165, lv. denied 183 A.D.2d 684, 586 N.Y.S.2d 490).

The opinion offered by appellants' expert did not succeed in demonstrating that the Trustees made imprudent investments, either under EPTL 11-2.2 or under EPTL 11-2.3, particularly since the expert failed to take into account payable capital gains taxes and the expenses paid yearly out of trust principal, or the fact that the two indices he considered as a point of comparison are solely equities-based, rather than the requisite “balanced portfolio”.   Nor have we reason to accept the proposition that the investment in or retention of U.S. Treasury bills represents an imprudent investment (cf., Matter of Bankers Trust Co., 219 A.D.2d 266, 636 N.Y.S.2d 741, lv. dismissed 87 N.Y.2d 1055, 644 N.Y.S.2d 146, 666 N.E.2d 1060;  Matter of Miller, 116 A.D.2d 580, 581, 497 N.Y.S.2d 438, lv. dismissed 67 N.Y.2d 609, 503 N.Y.S.2d 1025, 494 N.E.2d 458).