Opinion
2011-12-15
David Russell GEORGIUS, as Trustee of the Georgius Family Trust, Appellant, v. VILLAGE OF MORRISVILLE et al., Respondents.(And a Third–Party Action.)
David Russell Georgius, Deansboro, appellant pro se. Congdon, Flaherty, O'Callahan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory A. Cascino of counsel), for Village of Morrisville, respondent.
David Russell Georgius, Deansboro, appellant pro se. Congdon, Flaherty, O'Callahan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory A. Cascino of counsel), for Village of Morrisville, respondent. Cramer, Smith & Miller, P.C., Syracuse (Ralph S. Alexander of counsel), for G. DeVincentis & Son Construction Company, Inc., respondent.Harter, Secrest & Emery, Rochester (Candace M. Curran of counsel), for Burley–Guminiak & Associates, Consulting Engineers, P.L.L.C., respondent.
Before: SPAIN, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ.
ROSE, J.
Appeal from an order of the Supreme Court (Cerio Jr., J.), entered August 2, 2010 in Madison County, which denied plaintiff's motion for joinder of a necessary party.
Plaintiff, as trustee of the Georgius Family Trust, commenced this action alleging that defendants damaged property owned by the trust while installing a sewer system. After plaintiff's wife, Elizabeth Hughes, was disqualified from acting as his attorney due to a conflict of interest (83 A.D.3d 1158, 920 N.Y.S.2d 475 [2011] ), plaintiff sought to join her as a necessary party. Supreme Court denied the motion, plaintiff appeals and we affirm.
Hughes' status as a cotrustee and cobeneficiary of the trust does not make her a necessary party here ( see CPLR 1001[a] ). While trustees are generally required to act together, an exception exists in this case as the trust instrument expressly provides that trustees may “act individually to bind the Trust in all matters” ( see Matter of Luckenbach, 303 N.Y. 491, 496, 104 N.E.2d 870 [1952] ). Furthermore, Hughes' status as a cobeneficiary does not require joinder because there is no internal dispute between trustees and beneficiaries ( cf. McKnight v. Bank of N.Y. & Trust Co., 254 N.Y. 417, 421, 173 N.E. 568 [1930]; Nowitz v. Nowitz, 37 A.D.3d 788, 788, 830 N.Y.S.2d 756 [2007] ), and plaintiff, as trustee, may properly sue on behalf of the trust without joining the beneficiaries ( see CPLR 1004; Fiduciary Co. v. Micro–Therapeutics, Inc., 83 A.D.2d 814, 814, 442 N.Y.S.2d 58 [1981]; see also Jackson v. Tallmadge, 246 N.Y. 133, 139, 158 N.E. 48 [1927] ). Thus, Supreme Court properly denied the motion.
ORDERED that the order is affirmed, without costs.