Opinion
2012-01-12
In the Matter of the SAMUEL A. GARRASI AND MARY H. GARRASI IRREVOCABLE TRUST DATED JULY 31, 1991.Robert Garrasi, as Trustee of the Samuel A. Garrasi and Mary H. Garrasi Irrevocable Trust dated July 31, 1991, Appellant, et al., Petitioner;Martin Finn, as Guardian ad Litem, Respondent.
Robert Garrasi, Glenville, appellant pro se.
Before: MERCURE, Acting P.J., LAHTINEN, SPAIN, MALONE JR. and KAVANAGH, JJ.
KAVANAGH, J.
Appeal from an order of the Surrogate's Court of Schenectady County (Versaci, S.), entered April 14, 2011, which, in a proceeding pursuant to SCPA article 22, denied petitioner Robert Garrasi's motion to dismiss the petition.
Samuel A. Garrasi (hereinafter Garrasi) and Mary H. Garrasi established in their names an irrevocable trust on July 31, 1991 in which their two children, petitioner Robert Garrasi (hereinafter petitioner) and petitioner Gail Aggen, were appointed trustees and named its beneficiaries. Sometime after Mary Garrasi died in July 1995, a Mental Hygiene Law article 81 guardianship proceeding was commenced concerning Garrasi. In that proceeding, petitioner, in his capacity as a trustee, was directed to perform and file an accounting of the trust's assets. The accounting was submitted in February 2005 and, one month later, Garrasi died. Thereafter, Surrogate's Court directed that petitioners commence a proceeding to judicially settle the accounting that had been performed on the trust. After petitioners filed such a petition, a guardian ad litem was appointed who subsequently filed objections to the accounting. In March 2011, petitioner moved to dismiss the petition for a judicial accounting, claiming that the court did not have subject matter jurisdiction over the trust. The court denied petitioner's motion, prompting this appeal.
Petitioner's sole argument on appeal is that Surrogate's Court did not have subject matter jurisdiction over the trust because it had been terminated in 2001, five years before an order was issued requiring that an accounting be performed. According to petitioner, the trust never had any assets in New York and, at the time that the petition for judicial settlement of the accounting was filed, no grantors or trustees lived in New York. SCPA 207(1) states that the court has jurisdiction “over the estate of any lifetime trust which has assets in the state, or of which the grantor was a domiciliary of the state at the time of the commencement of a proceeding concerning the trust, or of which a trustee then acting resides in the state or, if other than a natural person, has its principal office in the state.” Petitioner was directed to perform an accounting while Garrasi was alive and did so apparently because there was some concern regarding the status of his assets. Both Garrasi, the grantor of the trust, and petitioner, one of the trustees, resided in New York at the time that the order was issued. Moreover, there is no record support for petitioner's claim that Surrogate's Court had previously found that “the trust had been lawfully terminated in 2001.” As such, we agree with Surrogate's Court that it had subject matter jurisdiction over the trust and petitioner's motion to dismiss the petition was properly denied.
Petitioner's only support for this claim is a two-paragraph document, signed but not notarized by the two trustees, indicating that they “agree to terminate said trust” and “their mutual resignations as trustees.” The trust has not been included in the record.
ORDERED that the order is affirmed, without costs.