IN RE: MICHAEL SIMMONS AND MARCIA SIMMONS CRIM (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the decree so appealed from is unanimously modified on the law by vacating those parts granting the petition in part and removing respondent Mark Simmons as co-trustee of the Eugene and Pearl Simmons Irrevocable Income Only Trust, and as modified the decree is affirmed without costs and the matter is remitted to Surrogate's Court, Onondaga County, for further proceedings.

Memorandum: Petitioners-respondents (petitioners) and respondent-petitioner (respondent) were named as co-trustees of the Eugene and Pearl Simmons Irrevocable Income Only Trust (Trust). Petitioners commenced this proceeding seeking, among other things, to remove respondent as co-trustee of the Trust under sections 711 and 719 of the SCPA alleging, inter alia, that he had improperly removed Trust assets and interfered with the leasing of Trust property. Respondent denied petitioners’ allegations of misconduct and filed a cross-petition seeking, inter alia, dismissal of the petition and the removal of petitioners as co-trustees of the Trust. Respondent now appeals from a decree that, inter alia, granted the petition in part, removed him as co-trustee of the Trust, and denied his cross-petition. We modify.

Preliminarily, we note that respondent does not raise any contentions with respect to the denial of his cross-petition in his brief and, thus, has abandoned any challenge to that part of the decree (see Matter of Bodkin, 128 AD3d 1526, 1528 [4th Dept 2015]; Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]).

With respect to the granting of the petition insofar as it sought removal of respondent as a co-trustee, “[t]he removal of a fiduciary pursuant to SCPA 711 [or] 719 is equivalent to ‘a judicial nullification of the [settlor's] choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established’ ” (Matter of Mercer, 119 AD3d 689, 691 [2d Dept 2014], quoting Matter of Duke, 87 NY2d 465, 473 [1996]). Under either SCPA 711 or 719, “ ‘[t]he Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions [or] where the fiduciary's in-court conduct causes such facts to be within the court's knowledge’ ” (Matter of Bonerb, 199 AD3d 1437, 1438 [4th Dept 2021], quoting Duke, 87 NY2d at 472; see generally Matter of Alan H. Goodman 2011 Revocable Trust, 241 AD3d 1152, 1153 [1st Dept 2025]), and the removal of a trustee without a hearing “will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom ․ or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy’ ” (Mercer, 119 AD3d at 692, quoting Duke, 87 NY2d at 473; see also Matter of Collins, 36 AD3d 1191, 1193 [3d Dept 2007]). Here, in response to the factual averments by petitioners as to his misconduct, respondent submitted, inter alia, an affidavit in which he denied having ever improperly removed Trust assets or interfering with the leasing of Trust property, explained how his actions accorded—in his view—with his powers and obligations under the Trust documents, and disputed petitioners’ underlying factual averments. Presented with the competing claims, a hearing was required inasmuch as “the Surrogate must make a credibility determination concerning those issues, and then exercise [their] discretion concerning whether respondent should be removed from [his] appointment[ ]” (Bonerb, 199 AD3d at 1439). We therefore modify the decree by vacating the part granting the petition in part and removing respondent as co-trustee of the Trust, and we remit the matter to Surrogate's Court for further proceedings consistent with this decision (see id.).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court