Stout v. Christie, Manson & Woods International, Inc.

Order, Supreme Court, New York County (Stuart Cohen, J.), entered on May 20, 1997, which, sua sponte, appointed an independent counsel to represent the ultimate beneficiaries of the Mapplethorpe Foundation (the Foundation), unanimously reversed, on the law, without costs, and the appointment vacated. While we sympathize with the IAS Court’s frustration concerning the apparent conflict of interest underlying the individual plaintiffs pursuit of this potentially protracted litigation in his capacity as the executor of the estate, as well as concerning the failure of the Attorney-General’s office to take a more active role in protecting the Foundation, as beneficiary of the estate, pursuant to the authority granted to it under the Estates, Powers and Trusts Law (see, Lefkowitz v Lebensfeld, 51 NY2d 442, 445-446), we must nevertheless find that the court exceeded its statutory authority in appointing an independent counsel to represent the Foundation’s potential beneficiaries (see, Matter of May, 213 AD2d 838, lv dismissed 85 NY2d 1032). Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.