IN RE: Application of Emile David GOUIRAN

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

IN RE: Application of Emile David GOUIRAN, Petitioner-Respondent, For a Judgment, etc., v. Emile E. GOUIRAN, etc., Respondent-Appellant.

Decided: April 11, 2000

LERNER, J.P., ANDRIAS, SAXE, BUCKLEY and FRIEDMAN, JJ. Kevin O'Rourke Moore, for Petitioner-Respondent. Daniel A. Eigerman, for Respondent-Appellant.

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered March 10, 1999, which, in a proceeding pursuant to CPLR article 78, upon a prior grant of summary judgment in favor of petitioner, awarded the Gouiran Family Trust the total sum of $128,300.93 to be recovered from the former trustee, respondent-appellant Emile E. Gouiran, unanimously affirmed, with costs, and Emile E. Gouiran enjoined from instituting any further legal proceedings in the courts of the State of New York, without first obtaining leave from the IAS court, which shall grant such permission only on such conditions as justice dictates.

 In view of the total absence of documentary evidence supporting the claim of the former trustee that he advanced funds to the trust, for which he purportedly received reimbursement from funds received in the settlement of an action entitled The Gouiran Family Trust v. Cody (N.Y. County, Index # 600344/95), the IAS court properly awarded summary judgment to the trust for the amount of the settlement funds.   The former trustee's submission of a self-serving balance sheet and copies of a purported check ledger do not constitute the evidentiary showing in admissible form necessary to withstand petitioner's motion for summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also, Matter of Shulsky, 34 A.D.2d 545, 309 N.Y.S.2d 84, appeal dismissed 27 N.Y.2d 743, 314 N.Y.S.2d 993, 263 N.E.2d 391).

 The former trustee fled the country to France in 1988 while under criminal indictment, and has not yet returned, thus putting himself beyond the reach of the powers of the courts of New York. He has flouted court orders, including those directing an accounting, the return of trust assets, and his appearance in New York for examination (see, Matter of Emile David Gouiran v. Emile E. Gouiran, 263 A.D.2d 393, 693 N.Y.S.2d 127).   Under such circumstances, we find that he should be enjoined from instituting any further actions in the courts of this State, without first receiving permission from the IAS court.   Permission should be granted only on such circumstances as are just, including compliance with prior court orders.