Macklowitz v. Solomon

468 Order, Surrogate’s Court, New York County (Kristin Booth Glen, S.), entered June 27, 2012, which granted the petition to the extent of declaring two of the petitioners to be the lawful trustees of the subject trust and further declaring that appellant Jeffrey Solomon and respondent Russell Williams are not trustees of the trust, unanimously affirmed, with costs. The documentary evidence establishes that pursuant to the clear and unambiguous language of the trust, appellant was never validly appointed trustee and respondents Daniel Macklowitz and Laurie Selfon were duly appointed (see Matter of Matthews Trust No. 1, 61 AD3d 511, 512 [1st Dept 2009]). Moreover, as appellant’s only alleged act as trustee was to make certain payments that he was not required to make, from his own funds, it cannot be said that he relied upon any representation or assent to his being trustee in making such payments, nor has his position changed prejudicially, as he has a claim for the payments against the trust (BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 [1st Dept 1985]). Nor did the Surrogate err in failing to allow discovery or in ruling upon the petition and verified answers. This is a special proceeding and summary disposition is expressly permitted (CPLR 409). Concur—Andrias, J.E, Saxe, Freedman and Román, JJ.