ESTATE OF WILLIAM D. MODELL, Deceased (350478/K.L.M) — Before the court is the motion of Peter L. Klausner, the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of William D. Modell. Movant seeks summary judgment pursuant to CPLR 3213 granting his petition for appointment as successor co-trustee pursuant to SCPA 1502. In the alternative, movant asks the court to issue an order pursuant to CPLR 3126 striking the objections to his appointment which were filed by Shelby Modell, a trust beneficiary, for her failure to provide discovery.

For the reasons stated below, the motion for summary judgment is granted.

BACKGROUND

William D. Modell died on February 14, 2008, survived by his wife, Shelby Modell (hereinafter, "the objectant"), his son, Mitchell Modell, and his daughter, Leslie Modell. Decedent left a will dated October 27, 2004, as amended by codicil dated October 12, 2006. The will and codicil were admitted to probate by this court on April 4, 2008. In Paragraph Second of the will, decedent established a credit shelter trust for the benefit of the objectant. In Paragraph Third of the will, decedent established a generation-skipping trust for the benefit of the objectant. In Paragraph Sixth of the will, decedent created a residuary trust for the benefit of the objectant. In connection with each of the three trusts, letters of trusteeship were issued by this court on April 4, 2008, to the three nominated trustees, namely, Michael C. Axelrod, Charles A. Lubitz, and the objectant.

Michael C. Axelrod submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, Susan Lubitz, executed a renunciation on February 11, 2010. On May 13, 2010. Michael C. Axelrod filed a petition with this court for permission to resign and for the appointment of Peter L. Klausner (hereinafter, "movant"), the next successor trustee nominated by the decedent in his will.

On October 13, 2010, the objectant filed objections to the petition of Michael C. Axelrod for the appointment of movant as successor trustee of the trusts created under Paragraphs Second, Third and Sixth of decedent's will. The objectant asserts that there exists "historic hostility and acrimony" between the movant and Shelby Modell, and that there exists an "actual conflict" based upon a potential malpractice action that the objectant might bring against movant. The objectant also asserts that movant exhibited a "lack of candor" by his alleged failure to advise William D. Modell that naming movant as a successor executor carried legal ramifications.

Michael C. Axelrod died on January 7, 2011 while his petition was pending. On April 13, 2011, Charles A. Lubitz and movant jointly filed a petition for the appointment of movant as the successor trustee of the three trusts pursuant to SCPA 1502. While the objectant failed to object to this petition, the parties deemed her objections to the original petition to continue against the second petition. Objectant filed opposition to the present motion.

SUMMARY JUDGMENT

Summary judgment may be granted only when it is clear that no triable issue of fact exists (see e.g. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v. Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v. Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]); Zarr v. Riccio, 180 AD2d 734, 735 [2d Dept 1992]). The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party (Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v. Fishman, 155 AD2d 415, 416 [2d Dept 1989]).

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (see Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his proof (see Towner v. Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; see Prudential Home Mtge, Co., Inc. v. Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).

ANALYSIS

The initial question to be addressed by the court is whether movant has made a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]); Zarr v. Riccio, 180 AD2d 734, 735 [2d Dept 1992]). Movant maintains that there are no material facts which require a hearing, because even if all of the objections were true, they do not fall within the grounds for denying letters under SCPA 707.

Pursuant to SCPA 707, the court may issue letters to an entity or an individual who is not ineligible to receive letters. Subdivisions (1) (a) through (e) list those who are deemed ineligible, and subdivision (2) provides that a person who doesn't read and write English may be deemed ineligible at the discretion of the court.

"1. Persons ineligible

(a) an infant.

(b) an incompetent.

(c) a non-domiciliary alien except one who is a foreign guardian as provided in subdivision four of section one thousand seven hundred sixteen of this chapter, or one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state. Any appointment of a non-domiciliary alien fiduciary or a New York resident fiduciary hereunder shall be made by the court in its discretion.

(d) a felon.

(e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.

2. Persons ineligible in court's discretion. The court may declare ineligible to act as fiduciary a person unable to read and write the English language." (SCPA 707)

Movant also disputes each of the objections raised, pointing to his longstanding professional relationship with the decedent and with the objectant. Movant maintains that he has no history of hostility toward the objectant, as demonstrated by the fact that only two years ago she retained him to represent her in connection with the probate and administration in connection with the decedent's estate, which proceeded without difficulty. Movant asserts that the objections to his appointment are based upon his expressed reluctance to invade trust funds to purchase a $2,000,000.00 third home for the objectant in New York City. He indicated his belief that the proposed invasion would violate his fiduciary duty, should he be granted letters of trusteeship by the court, and he expressed this reservation to the objectant. In connection with the objectant's second assertion, that movant has a conflict because of a potential malpractice action she may bring against him for his failure to advise her of her right of election against decedent's estate, movant asserts that he did advise objectant of her right to elect against her husband's will, but that she chose not to exercise it. To date, no action has been filed by objectant against movant in connection with this issue. Lastly, movant notes that the objectant claims that movant exhibited a lack of candor by failing to advise decedent of the legal ramifications of nominating movant, who was decedent's attorney, as a successor executor under decedent's will. Movant argues that as the third nominee in succession, he neither served nor received commissions in that capacity, and that, in any event, his conversations with his client concerning the nomination of a successor executor would not impact upon his eligibility for letters of trusteeship.

A testator's wishes regarding the appointment of a fiduciary will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing (Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6 [Sur Ct. Nassau County]; Matter of Schill, NYLJ, Mar. 15, 2000, at 30, col 2 [Sur Ct, Nassau County]; Matter of Fordham, NYLJ, Dec. 16, 1998, at 22, col 6 [Sur Ct, Bronx County]; Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 35, col 1 [Sur Ct, Kings County]). Courts will not lightly set aside a decedent's choice of fiduciary (Matter of Mecko, 70 NYS2d 41 [Sur Ct. Broome County]).

"Decedent's selection of a fiduciary must be given great deference and the power of the court to deny the issuance of letters to a nominated [fiduciary] is strictly circumscribed by statute. Courts should nullify a testator's choice only upon a clear showing of serious misconduct that endangers the safety of the estate. Unless the nominated [fiduciary] is disqualified under SCPA 707, he cannot be denied letters" (Matter of Cruz, NYLJ, Sept. 15, 2009 at 38, col 2 [Sur Ct, Kings County]).

The only subdivision of SCPA 707 with any potential relevance to the objections raised is SCPA 707 (1) (e), which is an expansion of the grounds on which the court can deny letters to an individual (2 Warren's Heaton on Surrogate's Court Practice 33.02[6] [e], 7th ed). This subdivision refers to "substance abuse, dishonesty, improvidence, want of understanding, or [an individual] who is otherwise unfit for the execution of the office" (SCPA 707 [1] [e]). "[T]hese grounds all contemplate a fiduciary likely to jeopardize estate property" (Turano, Practice Commentaries, Book 58A, McKinney's Consolidated Laws of New York, 707, p. 530). Moreover, the statutory grounds listed above for disqualifying an individual from receiving letters are exclusive (Matter of Shephard, 249 AD2d 748 [3d Dept 1998]).

Even if objectant can prove that: (1) movant is hostile toward the objectant; (2) movant did not advise the objectant of her right to elect against her husband's estate, and that, as a result, movant may bring a proceeding against movant; and (3) movant failed to advise the decedent of the effect of nominating movant as a successor executor, any and all of these allegations are insufficient to render movant ineligible to receive letters of trusteeship pursuant to SCPA 707.

Therefore, movant has made a prima facie showing of entitlement to summary judgment. Once that burden is met, the objectant must proffer admissible evidence to establish a material issue of fact that would require a hearing on the question of movant's eligibility for letters so as to defeat the motion for summary judgment. The objectant has failed, as a matter of law, to raise a triable issue of fact with respect to the disqualification of the nominated co-trustee. There is no need for a hearing.

The motion for summary judgment is granted. Accordingly, there is no need to address the alternate relief requested by movant.

If future events indicate that movant is for any reason unfit to serve as co-trustee, the objectant may pursue a remedy under SCPA 711, which provides the bases to suspend, modify or revoke letters or to remove a fiduciary for disqualification or misconduct.

Letters of trusteeship will issue to Peter L. Klausner upon his qualification.

This decision constitutes the order of the court and no additional order need be submitted.

December 21, 2012