Matter of Weinstein

Matter of Weinstein 2024 NY Slip Op 31111(U) March 29, 2024 Surrogate's Court, New York County Docket Number: File No. P1963-2259/C Judge: Hilary Gingold Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

New York County Surrogate's Court DATA ENTRY DEPT. MAR 19 2024 SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------x In the Matter of the First Intermediate Account of Proceedings of Lloyd J. Shulman, as Trustee of the Trust Created for the Benefit of Gail Shulman Koster under Article File No. P1963-2259/C Sixth of the Will of

JOE WEINSTEIN,

Deceased. -----------------------------------------x G I N G O L D , S .

Before the court are two motions in connection with the

settlement of the intermediate account of Lloyd J. Shulman (Trustee

or Petitioner), as trustee of the trust under article sixth of the

will of Joe Weinstein for the benefit of Gail Shulman Koster

(Trust). The Trustee moves for partial summary judgment (CPLR

3212) 1 dismissing certain objections of Jonathan Koster (Objectant

or Jonathan), a presumptive remainder beneficiary. Shortly after

the Trustee's motion was sub judice, Jonathan submitted a motion to

compel discovery. For the reasons stated herein the court denies

both motions.

Decedent died testate in 1953. His will, admitted to probate

on August 5, 1965, created a trust for the life benefit of his

granddaughter, Gail Shulman Koster. Upon Gail's death, the trust

1 The Trustee seeks to dismiss certain objections without citing any provision of the CPLR. However, since objections were filed here, i.e., issue has been joined, the court will treat the Trustee's motion as one for summary judgment pursuant to CPLR 3212 (see Tufail v Hionas, 156 AD2d 670 [2d Dept 1989] [where issue had been joined, court should not have deemed unlabeled motion as motion to dismiss, but rather as one for summary judgment], citing Rich v. Lefkovits, 56 NY2d 276[1982]).

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remainder is distributable to Gail's issue, Melinda Koster and

Jonathan Koster. Letters of Trusteeship issued to Max Shulman,

Sylvia Shulman, and Lloyd J. Shulman on August 8, 1965. Max died in

2001 and Sylvia died in 2012 2 • Lloyd, as surviving Trustee, filed

an intermediate account for the period covering December 19, 1973,

to June 30, 2016. Objections to the account were filed by Jonathan.

Melinda and Gail executed releases, wherein, inter alia, they

consent to the account as filed.

Summary judgment is granted when the movant's case has been

"established sufficiently to warrant the court as a matter of law"

to direct judgment, but will be denied if the opposing party shows

"facts sufficient to require a trial of any issue of fact" (CPLR

3212[b]). In the context of an accounting proceeding such as this,

the fiduciary's sworn account, completed and filed in accordance

with the Surrogate's Court Official Forms for judicial accountings,

satisfies the fiduciary's initial burden of establishing

entitlement to judgment that the account is complete and accurate

(Matter of Rudin, 34 AD3d 371 [1 st Dept 2006] ["The fiduciary's burden

is usually met by simply placing the account into the record"]; see

also SCPA 106 [providing that the Official Forms "shall be

sufficient under the surrogate's court procedure act"]). To defeat

the motion, the burden shifts to the opposing party to offer proof

2 Lloyd Shulman has appeared in this proceeding as the fiduciary of Max's and Sylvia's estates.

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that demonstrates the existence of a material issue of fact,

requiring a trial (Zuckerman v City of New York, 49 NY2d

557[1980]) However, summary judgment may be denied where facts

essential to the opposition of the motion are exclusively within

the knowledge or control of the movant (CPLR 3212 [fl) and the

opposing party has not had a reasonable opportunity for disclosure

(see Baron v Freeport, 143 AD2d 792[2d Dept 1988]).

Here, the court record reflects that discovery was in the very

early stages when the Trustee brought his motion seeking to dismiss

six of Jonathan's 27 objections to the account. Indeed, the Trustee

made his motion for summary judgment only twelve days after

Jonathan filed his pleading. Shortly after the submission of the

Trustee's motion, which Jonathan opposed, the parties conferenced

the case with a court-attorney referee several times and were

engaging in informal discovery when Jonathan filed the instant

motion seeking to compel discovery. Where as here, the Trustee is

in sole possession of the information necessary to explain what

transpired during the accounting period, Objectant should be given

the opportunity to obtain discovery prior to the granting of

summary judgment (see Vukel v Joan DiGirolomo Irrevocable Trust,

172 AD3d 951 [2d Dept 2019])

In opposing Jonathan's motion to compel discovery, the

Trustee argues that a stay was in effect upon the filing of his

partial summary judgment motion, or alternatively, that he has

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responded to Jonathan's discovery demands, either by producing the

requested documents or by explaining his reasons why such discovery

is beyond the scope of the account. Lastly, he notes, and court

records confirm, there was no court order directing discovery that

he would otherwise be in violation of.

Finally, Jonathan's request for the Trustee to pay his legal

fees, costs and disbursements in connection with his motion is

denied as there is no evidence that the alleged conduct of the

Trustee was either wilful or contumacious.

Accordingly, based on the foregoing, it is

ORDERED that Petitioner's motion for partial summary judgment

is denied as premature; and it is further

ORDERED that Objectant's motion to compel discovery is denied

in its entirety; and it is further

ORDERED that the parties shall appear for a status conference

in Courtroom 509 on May 9, 2024 at 10:00 a.m.

The clerk shall serve a copy of this decision by regular mail

and email and order upon the parties whose addresses are listed

below.

~ Dated: March~, 2024

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TO:

Robert L. Ecker, Esq. Ecker, Ecker & Associates, LLP 80 Business Park Drive, Suite 204 Armonk, New York 10504 Attorneys for Petitioner, Lloyd Shulman

Donald Novick, Esq. Novick & Associates, P.C. 202 East Main Street, Suite 208 Huntington, New York 11743 Co-Counsel for Petitioner, Lloyd Shulman

Ira Kleiman, Esq. Brief Carmen & Kleinman, LLP 488 Madison Avenue, Suite 1120 New York, NY 10022 ik@briefjustice.com Attorneys for Objectant, Jonathan Koster

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