IN RE: THE PETITION FOR JUDICIAL

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Supreme Court, Appellate Division, Fourth Department.

IN RE: THE PETITION FOR JUDICIAL

CA 14–02157

Decided: May 06, 2016

PRESENT:  CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. LONGSTREET & BERRY, LLP, FAYETTEVILLE (MICHAEL J. LONGSTREET OF COUNSEL), FOR PETITIONER–APPELLANT.

MEMORANDUM AND ORDER

AGREEMENT DATED JUNE 19, 1998.

GEORGE M. PAVLYAK, OBJECTANT

RESPONDENT.

GEORGE M. PAVLYAK, OBJECTANT–RESPONDENT PRO SE.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by dismissing objection Nos. 5(O) and 5(P) in part, thereby approving reimbursement to petitioner for travel expenses related to trust administration in the amount of $6,934.85, and by dismissing objection Nos. 5(K), 5(U), 5(X), 5(Y), 5(Z), 5(AA), 5(BB), and 5(DD), and as modified the order is affirmed without costs.

Memorandum:  In a proceeding for the judicial settlement of the account of petitioner as trustee under an inter vivos trust, petitioner appeals from an order that, inter alia, granted certain objections following a hearing.

Initially, we reject petitioner's contention that objectant, in his capacity as a remainderman, lacked standing to challenge the administration of the trust from the date of the death of the first settlor.  At that time, the trust became irrevocable under its express terms and objectant obtained a pecuniary interest in the trust under its express terms (see generally Matter of Malasky, 290 A.D.2d 631, 632).  Contrary to petitioner's further contention, we conclude that Surrogate's Court did not impose an improper initial burden of proof on petitioner.  It is well settled that, “[i]n a proceeding to settle a fiduciary's account, ‘the party submitting the account has the burden of proving that he or she has fully accounted for all the assets of the estate, and this evidentiary burden does not change in the event the account is contested.  While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete’ “ (Matter of Doman, 110 AD3d 1073, 1074, lv denied 23 NY3d 903;  see Matter of Schnare, 191 A.D.2d 859, 860, lv denied 82 N.Y.2d 653).  Here, we conclude that the record establishes that the Surrogate properly applied those standards.

We agree with petitioner, however, that the Surrogate erred in concluding that petitioner failed to account for expenses incurred in updating and preparing the trust's residential real property for sale.  The record unequivocally establishes that petitioner accounted for all such expenses, that petitioner incurred them in good faith, and that they subsequently resulted in a gain, not a loss, to all interested parties (see generally Matter of Klausner, 192 Misc. 790, 793).  We therefore modify the order by dismissing objection No. 5(K).

Inasmuch as the terms of the trust provided for the reimbursement of reasonable travel expenses incurred by the trustee in administering the trust, we also agree with petitioner that the Surrogate abused her discretion in disallowing all of the listed travel expenses.  Upon our review of the record, we conclude that the claimed travel expenses should have been equally apportioned by petitioner between those incurred with respect to trust obligations and those related to the personal care of petitioner's mother, which is not a trust obligation, even though petitioner's mother was one of the trust settlors.  In our view, the amount of $6,934.85 reflects an appropriate allowance for reasonable and necessary travel expenses incurred for trust administration purposes, and we therefore modify the order accordingly with respect to objection Nos. 5(O) and 5(P).

We likewise conclude that the Surrogate abused her discretion in disallowing fees paid for professional accounting services rendered on behalf of the trust.  Surrogate's Court Procedure Act § 2309(1) provides that, upon the settlement of an account, the Surrogate must allow all reasonable and necessary expenses actually paid by a trustee.  The Uniform Rules for Surrogate's Court (22 NYCRR) § 207.40(g), provides that “[t]he cost of producing and delivering a full accounting to persons interested in the estate shall be deemed a proper disbursement and allowed as an expense of administration.”  Under the circumstances presented, we conclude that professional accounting services incurred by the trust over the span of six years in the total sum of $15,059.67 were both reasonable and necessary in the administration of the trust, and we therefore further modify the order by dismissing objection No. 5(U).

With respect to the denial of petitioner's statutory commissions, SCPA 2309(1) provides that, “[o]n the settlement of the account of any trustee the court ․ must allow to the [fiduciary] ․ a commission.”  Here, the record establishes that petitioner did not engage in fraud, gross neglect of duty, intentional harm to the trust, sheer indifference to the rights of others, or disloyalty, and there is no evidence that petitioner's services resulted in pecuniary loss to the trust.  We thus conclude that it was an abuse of discretion for the Surrogate to disallow petitioner her statutory commissions for her service as trustee (see Matter of Lasdon, 105 AD3d 499, 500, lv denied 22 NY3d 856), and we therefore further modify the order by dismissing objection Nos. 5(X), 5(Y), 5(Z), 5(AA), 5(BB), and 5(DD).

Frances E. Cafarell

Clerk of the Court