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: July 15, 1999

WILLIAMS, J.P., MAZZARELLI, RUBIN, ANDRIAS and BUCKLEY, JJ. Kevin O'Rourke Moore, for Petitioner-Respondent. Daniel A. Eigerman, for Respondent-Appellant.

Order and judgment (one paper), Supreme Court, New York County (Charles Ramos, J.), entered September 9, 1997, in this proceeding brought pursuant to CPLR article 77, which, inter alia, granted the petition to remove Emile Gouiran as trustee of the “Gouiran Family Trust”, directed a reconveyance of real property and a mortgage, directed that appellant appear for a deposition in New York, and ordered an accounting, unanimously affirmed, with costs.

 Evidence of respondent's self-dealing with trust assets, his criminal indictment, and his flouting of court orders requiring that mortgage payments be redirected by reason of the mortgage's reassignment, provided ample support for the IAS court's determination to remove respondent as trustee.   The appointment of petitioner as the new trustee was entirely proper in the absence of objection from the other trust beneficiaries and the trust settlor, and in the absence of complaint from the purported co-trustee.

 The record does not contain competent proof that respondent is unable to return to New York for deposition, and, in any event, his frequent use of New York courts in other, related litigation, would fatally undermine any claim that it would be a hardship for respondent to return to New York.

 Finally, in the absence of opposition from the trust settlor, and in view of appellant's checkered management of the trust, the court's direction of an accounting was warranted and, indeed, within its authority, notwithstanding any equivocal language in the trust agreement about the circumstances under which an accounting could be required.


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