IN RE: Judicial Settlement

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Judicial Settlement, etc., Andrew J. DUELL as an Executor of the Will of Manny E. Duell, Deceased. Andrew J. Duell, Respondent-Appellant, v. Thea Duell, et al., Petitioners-Respondents, Seth Rubenstein, et al., Additional Respondents.

Decided: February 23, 1999

SULLIVAN, J.P., WILLIAMS, WALLACH and MAZZARELLI, JJ. Charles F. Gibbs, for Respondent-Appellant. Arlene Harris and Laraine Pacheco, for Petitioners-Respondents. Additional Respondents, Pro Se.

Order, Surrogate's Court, New York County (Renee Roth, S.), entered on or about October 2, 1997, which, after a nonjury trial, removed respondent-appellant as co-trustee of Trust B, created under the decedent's will, revoked the letters of co-trusteeship previously issued to respondent-appellant, and directed that Surrogate's Court records be amended to reflect that respondent Irene Duell will continue to serve as sole trustee of Trust B, and order, same court and Surrogate, entered May 14, 1998, which, to the extent appealed from, granted the application of petitioners-respondents Thea Duell and Irene Duell to split Trust B into three separate trusts, appointed respondent Thea Duell co-trustee of the newly created trust established for her benefit, and appointed Thea and Benjamin Duell co-trustees of the newly created trust established for the benefit of Benjamin Duell, unanimously affirmed, with costs.

 In light of the demonstrated antagonisms between appellant co-trustee and the trust beneficiaries, and between appellant and his co-trustee, and the evidence establishing that those antagonisms resulted in actions by appellant co-trustee interfering with the proper administration of the estate, and upon the proof tending to demonstrate that future cooperation was unlikely, the Surrogate's determination to remove appellant as co-trustee was a proper exercise of discretion (see, Surrogates Court Procedure Act § 711;  Application of Wehrli, 36 A.D.2d 488, 321 N.Y.S.2d 438, affd. 30 N.Y.2d 510, 330 N.Y.S.2d 60, 280 N.E.2d 887;  Matter of Rad, 162 Misc.2d 229, 616 N.Y.S.2d 684;  Matter of Lipsit, 50 Misc.2d 289, 269 N.Y.S.2d 989).

 The evidence presented on the trial of the removal action also supported splitting the trust pursuant to Estates Powers and Trusts Law § 7-1.13(a)(3), and the appointment of appellant's siblings as co-trustees of the newly created trusts did not violate the provisions of Surrogates Court Procedure Act § 706.

Since we perceive no ground warranting an exception to our usual practice of deferring to the trial court's credibility determinations (see, Cushman & Wakefield, Inc. v. 214 E. 49th St. Corp., 218 A.D.2d 464, 639 N.Y.S.2d 1012, appeal dismissed 88 N.Y.2d 951, 647 N.Y.S.2d 708, 670 N.E.2d 1339), we find appellant's remaining arguments premised upon challenges to those determinations to be unavailing.


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