Ellen Goodman, Objectant-Appellant, v. Tamara Stack, Respondent–Respondent. (2025)

Order, Surrogate's Court, New York County (Rita Mella, S.), entered April 12, 2024, which, to the extent appealed from, granted the motion of the Trustee, respondent Tamara Stack, for summary judgment on objectant Ellen Goodman's objections 1, 5, 6, 9, 13(c), 15, 16, 17, 20(a) and (e), 22, and 24 to respondent's Amended Intermediate Accounting for the period March 22, 2016 through May 4, 2017 (Accounting), unanimously affirmed, without costs.

In objection 1 objectant contends that the Trustee should be removed because of her attorney-client relationship with decedent's widow.  Objectant argues that there is a question as to whether the Trustee gave the widow preferential treatment to the detriment of the Trust beneficiaries.  The Trustee admits to having an attorney-client relationship with the widow and decedent prior to his death but not thereafter.

The court correctly granted the Trustee summary judgment on this objection as objectant failed to show how she was damaged by the alleged conflict of interest.  Actual misconduct supports removal of a fiduciary, not merely a conflict of interest (see Matter of Marsh, 179 A.D.2d 578, 580, 578 N.Y.S.2d 911 [1st Dept. 1992]).  Decedent was well aware of the potential conflict of interest when he selected the Trustee of the Trust.  His choice should not lightly be set aside (see Matter of Foss, 282 App.Div. 509, 512–513, 125 N.Y.S.2d 105 [1st Dept. 1953]), as no evidence of actual misconduct was presented.

The court properly granted summary judgment to the Trustee on objections 5, 6, 9, and 20(a) and (e), which assert that the Accounting was inadequate or that improper payments were made from the Trust to third parties.  The sworn Accounting provided by the Trustee, which noted cash on hand and the principal and income of the Trust, established prima facie the Trustee's entitlement to that relief (see Matter of Rudin, 34 A.D.3d 371, 824 N.Y.S.2d 637 [1st Dept. 2006]).  Objectant failed to present evidence sufficient to raise a triable issue of fact as to improper payments or the omission of any Trust asset from the Accounting.

Objections 13(c), 15, 16, and 17 were similarly unsupported by evidence (see Matter of Putter, 38 A.D.3d 1333, 830 N.Y.S.2d 687 [4th Dept. 2007]).  The Trust agreement at Article IIA1 and 2 authorized the Trustee to pay decedent's debts, which included any obligation to the widow under the prenuptial agreement.  Article IIA3 did not limit this authority but permitted the Trustee to make additional payments with the certification of the executors of decedent's will.  Here, the payments which objectant alleged and the trustee denied fell within the authority provided to the Trustee in Article IIA1 and 2 of the Trust agreement.

The Trustee properly included decedent's stepson as an interested party in the Accounting because the Trust agreement allows for the payment of the bequest to him upon certification by the executors that the probate estate is insufficient, as the court found.  Objectant failed to support objection 22 with any evidence of how decedent's stepson's inclusion as an interested party caused her damages.  Similarly, objection 24 is unsupported by evidence of damage to objectant.

We have considered the remaining arguments and find them unavailing.