Opinion
No. 2005-125/f Mot. Seq. No. 1
12-12-2022
In the Matter of the Application for Appointing a Successor Trustee and the Issuance of Successor Letters of Trusteeship Under Paragraph "SECOND (a)" of the Last Will and Testament of: MERYL E. SOUTHLEA (deceased).
William T. Barbera, Esq. Attorney for Respondent Trevor Southlea Kendall Southlea Petitioner, pro se
Unpublished Opinion
William T. Barbera, Esq. Attorney for Respondent Trevor Southlea
Kendall Southlea Petitioner, pro se
DECISION & ORDER
HON. ANTHONY R. MOLE SURROGATE JUDGE.
The following papers were read and considered in accordance with CPLR 2219 (a) and 22 NYCRR 207.7 on the motion by respondent TREVOR SOUTHLEA (Mot. Seq. No. 1), to, inter alia, dismiss the petition, pursuant to SCPA 707, of petitioner KENDALL SOUTHLEA requesting for his appointment as the successor trustee of the testamentary trust created in Paragraph "SECOND (a)" of the will of the decedent, Meryl E. Southlea, made October 5, 1995:
Papers :
Notice of Motion, Affirmation in Support, Affidavit in Support, Unmarked Exhibits Petitioners Opposition: "Verified Reply to Objections" and "Opposition Affirmation" (single document), Exhibits 1-10
Reply Affirmation, Memorandum of Law in Further Support
Upon review of the foregoing papers, the Court finds and determines as follows:
I. Factual Background & Procedural History
Meryl E. Southlea (hereinafter decedent) is the deceased mother of Kendall Southlea (hereinafter petitioner) and Trevor Southlea (hereinafter respondent). Decedent made a will in 1995 nominating her son, respondent, as the proposed executor of her estate. Decedent died in 2004. Shortly thereafter, respondent petitioned to be the executor of decedent's estate in accordance with the will. Decedent's will was admitted to probate in 2005 and letters testamentary were accordingly issued in this Court by the Hon. James T. Rooney, Surrogate (retired).Decedent's estate was judicially settled in 2010.
The Decree granting respondent letters testamentary is dated July 28, 2005.
As pertinent here, the will established a testamentary trust, under paragraph "SECOND (a)," wherein decedent named her two sons, the parties herein, as the beneficiaries. Decedent's spouse, Warren R. Southlea, was named as the sole trustee in paragraph "EIGHTH" of the will.
Decedent established a trust for the parties' benefit of her stock holdings in South-Glo Properties, Inc. (hereinafter referred to as "South-Glo") - a real estate business involved in the ownership, management, and operation of an apartment building and headquartered in the Village of Pelham, Westchester County. When decedent's will was admitted into probate, the trustee was simultaneously granted Letters of Trusteeship by Surrogate Rooney. The respondent-executor's account for decedent's estate was judicially settled by final decree of Surrogate Rooney (dated April 13, 2010).
Petitioner does not argue that decedent's estate was judicially settled over 12 years ago.
Paragraph "SECOND (a)" of decedent's will states, in relevant part, as follows: "I give the Shares of Stock in the SouthGlo Properties Corp., as follows . . . if WARREN SOUTHLEA shall be alive at my death, said stock instead shall be given to my Trustee and held by my Trustee, IN TRUST, as a single trust for the benefit of my then living children and more remote issue, as hereinafter provided. My Trustee shall pay so much or all of the net income and principal of this trust to, or for the benefit of, any one or more of said group, for their health, education, maintenance and support, as determined in the absolute discretion of my Trustee, without the any requirement of equality. Upon the death of the trustee, all shares/ and remaining income and principal (with adjustment for amounts previously paid) shall be paid and distributed to my then living issue, in equal shares per stirpes."
The trustee died on or about June 3, 2019 in Mexico and while, albeit disputed by the parties, a resident of Westchester County. Petitioner now applies to take his place and be designated as the successor trustee.
On April 20, 2022, petitioner filed the underlying petition seeking to be appointed as the successor trustee of the testamentary trust and to be issued successor letters of trusteeship. In August 2022, respondent filed objections to the petition and an accompanying motion to dismiss.
A citation was made returnable September 23, 2022 when petitioner appeared pro se and respondent's counsel appeared. The Court established a briefing schedule thereat with respect to respondent's motion to dismiss.
Petitioner filed pro se opposition papers with the Court on October 21, 2022. Based upon a court notice sent November 3, 2022, the Court extended respondent's time to file his reply papers by November 17, 2022 (see CPLR 2004). Respondent timely filed his reply papers on November 16, 2022.
Initially, the Court is compelled to address petitioner's submissions. His opposition is denominated as "Applicant[']s Verified REPLY to Objections," dated October 20, 2022, wherein he includes a heading on page one labeled "Opposition Affirmation." On October 24, 2022, petitioner filed a "Verification" in relation to his opposition papers that is notarized by the Deputy Chief Clerk of this Court. The foregoing submissions and filings are replete with errors.
First, petitioner's opposition is not in a proper answering affidavit form (see CPLR 2214 [b]). Petitioner also failed to timely serve respondent with a copy of the opposition papers (see id.), or to provide the court with proper proof of service. In short, petitioner's pro se opposition to the motion is neither an affirmation, affidavit, or a memorandum of law, and therefore is not in proper form. Notwithstanding these defects and irregularities in his submissions including the procedural manner in which it was filed, the Court will disregard them given petitioner being a self-represented litigant (see CPLR 2001).
The undersigned notes that "an inexperienced litigant who chooses to represent himself or herself in court does so with a degree of risk involved" (Sloninski v Weston, 232 A.D.2d 913, 914 [3d Dept 1996], lv denied 89 N.Y.2d 809 [1997]; see generally Tiflinskiy v Bell, 25 Misc.3d 140[A], *1 [App Term, 2d Dept, 11th & 13th Jud Dists 2009]). "[A]lthough courts will routinely afford pro se litigants . . . some latitude, a litigant's decision to proceed without counsel does not confer any greater rights than those afforded to other litigants" (Mirzoeff v Nagar, 52 A.D.3d 789, 789 [2d Dept 2008] [emphasis added] [internal quotation marks and citation omitted]; accord Bank of Am., N.A. v Afflick, 172 A.D.3d 1146, 1147 [2d Dept 2019]).
Setting aside the procedural deficiencies, the Court is aimed at addressing the merits of the motion to dismiss and issues presented in connection therewith. Having reviewed the motion papers and considered the arguments asserted therein, the Court disposes of the motion in accordance with this decision.
Respondent's primary argument in support of dismissing the petition is predicated on SCPA 707 (1) (d) inasmuch as he claims that petitioner is unfit to serve as the successor trustee based on his previous troubling and harassing conduct against him and, to a degree, the trustee. Respondent also contends that petitioner cannot serve as such fiduciary under SCPA 707 (1) (c) because he is a non-domiciliary being a resident of Connecticut. Alternatively, respondent requests to transfer this proceeding to Westchester, impose a stay on all proceedings, or appoint him or the Public Administrator as the successor trustee.
In response, petitioner argues that he be issued successor letters of trusteeship. He opposes changing venue to Westchester. Rather than asserting arguments, petitioner makes various allegations, set forth below, that are plainly irrelevant to this motion and underlying proceeding.
II. Legal Analysis and Discussion
a. Respondent's Application to Transfer to Westchester County
That branch of respondent's motion to transfer this proceeding to Westchester is denied. While both SCPA 209 (3) and 501 (1) (a) permit this Court to transfer a pending proceeding out to another Surrogate's court (see Matter of Kelly, 17 A.D.3d 791, 792-793 [3d Dept 2005]), such a transfer to the Surrogate's Court of Westchester County is discretionary. The gravamen of this proceeding involves the subject trust, which clearly affects or relates to the administration of the decedent's estate (see SCPA 501 [1] [a]). This Court concludes that it has continuous jurisdiction "over all actions and proceedings relating to the affairs of [the] decedent[] . . . administration of estates and actions and proceedings arising thereunder or pertaining thereto" (NY Const, art VI, § 12 [d]), since the decedent's estate was probated in this County (cf. Matter of Tilimbo, 13 Misc.3d 1222[A], *1 [Sur Ct, Bronx County 2006]).
b. Petitioner's Eligibility to Receive Letters
Prefatorily, respondent advises in his reply papers that there was a typographical error on paragraph "1" of his notice of motion insofar as it omitted reference to the correct statute - namely, SCPA 707 (1) (c). Since the moving papers were sufficiently particularized so as to alert petitioner about that argument, the mistake or omission in respondent's notice of motion was a mere irregularity that can properly be disregarded by this Court (see CPLR 2001; Mockin v Astoria Fed. Sav. & Loan, 137 A.D.3d 984, 985 [2d Dept 2016]).
Notwithstanding, respondent's contention resting on SCPA 707 (1) (c) that petitioner is ineligible to be appointed as successor trustee because he is a non-domiciliary being a resident of Connecticut, not this State, is incorrect. Petitioner did not address this to any extent in his opposition.
"SCPA 707 (1) (c) actually states that nondomiciliary aliens may only be issued letters . . . or named as fiduciaries in certain circumstances" (Matter of Lupoli, 191 A.D.2d 564, 565 [2d Dept 1993]). Respondent himself concedes in reply papers that petitioner is "apparently a [U.S.] citizen." However, the fact that petitioner is not a domiciliary of New York State is irrelevant and as long as he is a citizen of the United States, "the particular state of which he is a domiciliary is of no consequence" (Matter of Lupoli, 191 A.D.2d at 564-565). The Court adds that the "Legislature has progressively broadened the pool of persons who are eligible to serve as a fiduciary (Matter of Kerr, 163 Misc.2d 877, 879 [Sur Ct, New York County, 1995]; see SCPA 707 [1] [c]).
c. Construction of Decedent's Will and Judicial Discretion to Appoint a Successor Trustee
"In interpreting a will, the prime concern is the intent of the testator. The best evidence of the intent of the testator is the clear and unambiguous language of the will itself" (Matter of Borrometi, 238 A.D.2d 416, 416 [2d Dept 1997] [internal citations omitted]; Matter of Luposello, 225 A.D.2d 551, 552 [2d Dept 1996]).
"A testator has the right to determine who is most suitable to settle his or her affairs and that determination is not to be lightly set aside" (Matter of Coons, 149 A.D.3d 731, 732 [2d Dept 2017]). "All rules of interpretation [in a will] are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy. The testator's intent must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed" (Matter of Bonanno, 151 A.D.3d 718, 719 [2d Dept 2017] [internal quotation marks and citations omitted]).
Relevant here also, "SCPA 1502 (2) provides that the court shall not appoint a trustee, successor[,] or co-trustee if such would contradict the [w]ill's express terms, or if the named trustee is not disqualified to act" (Matter of Weininger, 257 A.D.2d 537, 538 [1st Dept 1999]). "The power of the appointment vested in the court to appoint trustees, while largely discretionary, is not to be exercised arbitrarily, but with due consideration of the wishes of those chiefly interested, except where there is some question of fitness of the suggested appointee, or where the beneficiaries fail to agree" (Matter of Gunther, 197 AD 28, 39 [1st Dept 1921]). Accordingly, a court may exercise its sound discretion to appoint a successor trustee (and issue successor letters of trusteeship) to any person eligible under SCPA 707 and who otherwise qualifies under SCPA 708 (see id.; Matter of Daverin, 1998 WL 35421907, [Sur Ct, Nassau County 1998]). Also applicable here, SCPA 1502 (5) provides that "[t]he court may appoint a successor trustee for any purposes deemed necessary to complete administration or distribution of a trust which has terminated by the occurrence of the event measuring its duration when there is no person in office able to execute it" (emphasis added).
Here, decedent's will contains no express nomination or designation for an alternate/successor trustee. Decedent died without naming one relative to the underlying trust. A fair reading and interpretation of the subject will and trust in this matter reflects that the decedent-testatrix made no express intent for a continuation of the trust (compare Matter of Jones, 91 Misc.2d 143, 143-144 [Sur Ct, New York County 1977] [where the Surrogate found a limited exception to SCPA 1502 (2) because a cotrustee was needed to help an aging named successor trustee fulfill her duties]; Matter of Muenzemaier, 1999 WL 35138743, *1 [Sur Ct, Nassau County 1999]).
Nor did petitioner establish that this Court must appoint a successor trustee or that one is required since such is contrary based on the terms prescribed in decedent's will (see SCPA 1502 [2]; Matter of Yanity, 2017 WL 464850 at *1). If that had truly been decedent's intent from the outset, she could have opted to include a provision in her will to that effect (see Matter of Schuyler, 133 A.D.3d 1160, 1163 [3d Dept 2015]; see e.g. Matter of Bensel, 127 A.D.2d 832, 832-833 [2d Dept 1987]). Decedent did not do so and instead expressed a desire as to what should happen if the trustee dies: "Upon the death of the trustee, all shares/ and remaining income and principal . . . shall be paid and distributed to my then living issue, in equal shares per stirpes" (emphasis added). "What may be divined only by implication necessarily cannot constitute an express testamentary provision" (Matter of Schuyler, 133 A.D.3d at 1163; Matter of Stavin, 56 A.D.2d 68, 70 [1st Dept 1977], affd 43 N.Y.2d 669 [1977]).
Moreover, appointment of a prospective successor trustee is within the undersigned's broad discretion (see SCPA 1502 [2]; Matter of Rudin, 15 A.D.3d 199, 200 [1st Dept 2005]; Matter of Rehfuss, 171 A.D.2d 1022, 1022 [4th Dept 1991]). While this Court may appoint a trustee pursuant to SCPA 1502 and 706 (2), it is not obliged to exercise its discretion in doing so based on the circumstances (see e.g. Matter of Rudin, 15 A.D.3d 199, 200 [1st Dept 2005] [holding that the Surrogate exercised proper discretion in the decision not to appoint the applicant a successor cotrustee of the trust which terminated upon the beneficiary's death]; see also Matter of Astor, 2 Misc.2d 385, 387-388 [Sur Ct, Columbia County 1956]; cf. Matter of Statler, 27 A.D.3d 1163, 1164 [4th Dept 2006] [affirming Surrogate's decision to appoint a successor to the original trustee who resigned since the trust instrument expressly established such function by contemplating the appointment of a successor trustee based on the resignation of a trustee, "even absent an application for appointment of a successor trustee"]). Therefore, petitioner did not demonstrate that he should be appointed as successor trustee pursuant to the terms of decedent's will and this Court is not obligated to appoint him (see Matter of Yanity, 2017 WL 464850, *1 [Sur Ct, New York County 2017]; see generally Matter of Marsh, 179 A.D.2d 578, 580 [1st Dept 1992]).
d. Petitioner's Fitness to Receive Letters
The Court next turns to respondent's primary ground for dismissing the petition and denial of successor letters of trusteeship to petitioner. Respondent mainly argues that petitioner is wholly "unfit for the execution of the office" (SCPA 707 [1] [d]). Respondent bears the burden to demonstrate as much.
The eligibility to receive successor letters of trusteeship is governed by SCPA 707, which, insofar as is relevant here, permits the denial of letters to "one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office" (SCPA 707 [1][d] [previously subdivision (e) and redesignated as subdivision (d) by L2021, ch 486, § 1 (eff. Oct. 22, 2021)]). "Conclusions and inferences alone, without supporting facts, provide an insufficient basis for supporting one's objections to the fitness of another to serve as fiduciary" (Matter of Gadziala, 54 Misc.3d 1212[A], *6 [Sur Ct, Oneida County 2017]; see Matter of Mandelbaum, 7 Misc.3d 539, 542 [Sur Ct, Nassau County 2005]). "In order for a . . . fiduciary's improvidence to preclude his appointment, it must be demonstrated that his habits of mind and conduct have become such a part of his character as to render him generally, and under all ordinary circumstances, unfit for the trust or employment in question" (Matter of Gottlieb, 75 A.D.3d 99, 107 [1st Dept 2010], lvs denied 16 N.Y.3d 706 [2011] [internal quotation marks and citation omitted]). Again, respondent has the burden of proving that petitioner is unfit to act as the successor trustee (see Matter of Palma, 40 A.D.3d 1157, 1158 [3d Dept 2007]; Matter of Hirschorn, 21 Misc.3d 1113[A], *9 [Sur Ct, Westchester County 2008]).
"Want of understanding, as a ground for objection to the issuance of letters, means an absence of intelligence sufficient to comprehend the nature and extent of the duties of a fiduciary" (Matter of Britton, 173 Misc.2d 300, 302 [Sur Ct, Westchester County 1997]).
SCPA 707 (1) (d) (formerly subdivision [e]) was amended in 1993, adding the provision for denial of letters to one "who is otherwise unfit for the execution of the office," which was done primarily in order "to clarify the standard to be employed by the Surrogate in denying letters to one otherwise authorized to receive such letters and to expand the possible bases on which denial of letters might be grounded" (Matter of Rad, 162 Misc.2d 229, 231 [Sur Ct, New York County,1994], quoting Second Report of the EPTL-SCPA Legislative Advisory Committee, 1993 McKinney's Session Laws of NY, at 2240).
1. Parties' Submissions
Respondent presses that petitioner does not possess the necessary qualifications to serve as the fiduciary of the trust and is unfit for that role. In support of his motion to dismiss the petition, respondent submits, among other things, an affidavit in support, the 2010 decree settling the account based on respondent's fiduciary role as executor of the decedent's estate, and counsel's affirmation of support of dismissal.
In his affidavit, respondent states that South-Glo presently owns a 64-unit residential building in Pelham and that the domestic corporation has 200 shares with no par value of which 150 shares are held by him and 50 shares are held by petitioner in the trust. Respondent asserts that the only remaining trust item which must be finalized is "the handling and distribution of [petitioner's] 50 [ownership] shares" in South-Glo that are being held for petitioner's benefit. Respondent states, in his affidavit, that petitioner filed numerous "frivolous" actions against him "over the last decade" and has engaged in harassing conduct, inclusive of the following: (1) petitioner broke into the South-Glo property in August 2019 through the basement and stole $2,000 cash from respondent's office which resulted in police involvement; (2) petitioner trespassed onto the South-Glo property on March 3, 2020 with a Pitbull dog and "screamed" at respondent that he immediately vacate the office and provide housing for petitioner and his family, despite respondent having an active order of protection in his favor against petitioner containing a full stay away provision; (3) petitioner entered into respondent's home in Mahopac on or about September 9, 2019 to harass respondent and his family, leading respondent to file a family offense petition against him in Putnam Family Court; and (4) that from 2013 and onward, petitioner retained "sundry law firms" threatening legal action against respondent and the trustee regarding South-Glo, but petitioner's continuous litigation never "materialized" even after "full disclosure and inspection of South-Glo['s] financial records," and thereafter, petitioner abandoned those meritless actions.
Respondent further asserts in his affidavit that petitioner is unfit because he has been "violent, aggressive[,] and litigious" over the last few years and that petitioner is focused on "seeking revenge" against him. Respondent states that if petitioner is granted the appointment, petitioner would improperly "abuse" his fiduciary powers as successor trustee to further harass him and file additional lawsuits against him or South-Glo for "revenge, harassment, and imposition of unwarranted legal fees." Respondent adds in his affidavit that petitioner has shown greater animosity toward him after the trustee's sale to respondent of petitioner's 50% interest in the corporation and since the trustee gave respondent 25% of the trust holdings. Respondent states that petitioner would "abuse and enlarge" his fiduciary power to "harass" him in the event petitioner is named the successor trustee and, according to respondent, petitioner would "improperly use [his] power in an extremely abusive manner." Lastly, respondent avers in his affidavit that due to petitioner's conduct, the decedent purportedly "prepared a new Last Will and Testament" which provided that respondent was to "be appointed successor trustee" upon the trustee's death; however, the decedent never executed the will based on her untimely death.
The 2010 decree settling the account reflects that petitioner's claim against the estate was rejected and the respondent-executor was directed to distribute $7,579.17 to petitioner based on the 50% balance of $15,158.34 consisting of cash in the estate.
Counsel's affirmation in support details, among other things, the litigation that petitioner has engaged in over the last two years, stating that he has represented respondent on many of the lawsuits instituted by petitioner against respondent. Counsel's affirmation adds that petitioner retained law firms in 2020 to negotiate purchase of respondent's stock, "cause[d] financial discovery" inclusive of recent corporate tax returns being provided to petitioner; and despite settlement discussions where respondent made formal offers to buy petitioner's shares, none of the offers were accepted by petitioner, nor did petitioner make any counteroffers after the exchange of financial documents. Counsel's affirmation further describes that petitioner abandoned that litigation and then commenced various Family Court proceedings, under Article 8 of the Family Court Act, in this Court in September 2019 and in New Rochelle Family Court in May 2021. Counsel states that petitioner's "frivolous actions were summarily dismissed" by the Family Court judges.
Respondent, through counsel's affirmation, insists that petitioner has "displayed a violent distrust and dislike" of him over the last decade, that petitioner has verbally threatened him, trespassed and broken into the South-Glo real property, removed money from there requiring a police investigation, and filed meritless false claims against him. Respondent stresses through counsel's affirmation that petitioner's "bad faith history" is an indication that his prospective fiduciary appointment will cause him to "use any power to harass" him and South-Glo. Of import, petitioner does not refute respondent's assertions to any extent.
Petitioner asserts in opposition, among other things, that a United States court "must exercise authority of the trust administration." Petitioner states that the subject trust "is to be deemed a domestic trust" and he avers that the trustee was a resident of Mexico from 2005 until his death in 2019. Petitioner also avers that the trustee has a "purported wife" in Mexico who is a "Mexican national." Petitioner further claims that the trustee used respondent as an "unauthorized agent for access to [m]ortgage loans," while the trustee was allegedly "incapacitated" and unable to carry out his normal fiduciary duties. Petitioner asserts that respondent has "assumed the titles of President, V.P.[,] and Treasurer . . . in operat[ing] the trust." Petitioner also alleges that respondent is acting as the unauthorized "acting trustee . . . by administering the collection of rents and disbursements" within the trust. Petitioner additionally avers that the trustee's will "mysteriously appeared" in Surrogate's Court, Westchester County, averring that the trustee's signature on the document was "forged." Petitioner finally adds that this Court "not entertain any [f]urther frivolous and meritless claims" by respondent's attorney.
This Court gives no credence to petitioner's allegation that the trustee's will was a forgery. Whether the trustee's purported will contains his genuine signature has no bearing on this proceeding as this matter is not a will contest of the trustee's estate.
In addition to the foregoing, petitioner appends voluminous submissions to his opposition, some of which are entirely irrelevant and bolster respondent's position that petitioner is unqualified to serve as the successor trustee. In so doing, petitioner provides no explanation as to why they were annexed, leaving the Court to painstakingly review the documents and parse through what is or may be significant to the various issues presented on this motion.
For example, petitioner attaches the trustee's voting history report obtained from the Westchester County Board of Elections in April 2022 (exhibit 4), reflecting that the trustee last voted in the 2004 general election. Even, accepting as true, petitioner's assertion that the trustee was a resident of Mexico, not Westchester, that in and of itself has no bearing on petitioner's instant application. Petitioner also attaches documents about outstanding child support payments due from him, including an "Income Execution for Support Enforcement" issued in 2005 from a Support Magistrate in Westchester Family Court which reflects that petitioner was $44,773.73 in arrears and directed South-Glo to deduct income from petitioner based on the unpaid child support (exhibit 5). Respondent, in reply papers, points out that petitioner failed to make child support payments and was subjected to legal proceedings as a result.
Petitioner also attaches a one-page complaint he filed with the Nevada Attorney General's Office in 2017 against, among others, respondent alleging, among other things, mortgage fraud (exhibit 7). According to respondent, no action was taken by that Office in connection with petitioner's complaint. Petitioner also proffers a petition he purportedly filed in April 2022 in the Surrogate's Court for a search of the trustee's apartment in Pelham (exhibit 10). There is no indication that such document was processed and stamped by a clerk of the court. Respondent, in turn, asserts upon information and belief that no action was taken on that proceeding.
In his opposition, petitioner attaches, among other things, two narrative reports from the Carmel Police Department from July and August 2019; an email correspondence, dated March 4, 2020, apparently sent to the Mayor of the Village of Pelham; and copies of the transcript minutes in connection with the parties' family court proceedings in 2019 in Putnam Family Court.
The two narrative reports from the Carmel Police Department submitted by petitioner are relevant here and tend to substantiate respondent's version of the events (exhibit 1). The July 2019 police narrative report reflects that respondent contacted police based on "issues" he was having with petitioner. The narrative report states that respondent was "concerned about actions" which petitioner may take since respondent had been controlling the "family business"; that petitioner may be on his way to New York; and that respondent "wants it on record" that petitioner should be a "suspect" if "something [was] to happen to [respondent]." The narrative report indicates that respondent was advised to call police if petitioner showed up at his residence or place of business.
The narrative reports reflect that they were printed March 8, 2022.
The other police narrative report reflects that respondent called police on August 13, 2019 as the complainant and reported that petitioner, as well as petitioner's wife and child, "showed up at his residence last night," noting that petitioner "did break into his place of business earlier [that day] in Pelham" which had been reported to the Pelham Police Department. The narrative report further reflects that a Carmel police officer attempted to call petitioner on August 14, 2019 but "was unable to make contact" and so respondent was "advised to call" police if petitioner "return[ed] to his residence." The foregoing police reports tend to corroborate respondent's description of petitioner's actions, which petitioner does not deny in his opposition papers.
Petitioner also attaches an email correspondence, dated March 4, 2020, apparently sent to the Mayor of the Village of Pelham (exhibit 1), wherein petitioner wrote, as pertinent here, about his work and involvement in improving the South-Glo real property - which he avers has been "neglected" and "milked" by respondent and his wife who "allegedly have conspired to alter the ownership and stock shares." Petitioner states in the email that the trustee, a prior board member of South-Glo, "left Pelham in 2005 and never returned from Mexico"; that petitioner has remained a shareholder in the corporation which is being held in trust; and that the trustee's death in 2019 prompted petitioner's "return to Pelham to re[]establish [his] role and leadership." Petitioner further states therein that his main goal is to "return" the South-Glo property "to its 1990s condition and tenant quality" which he describes was "pristine" at the time. Petitioner also references in the email the incident which occurred on August 13, 2019 at the South-Glo property, stating that police were called and he was advised "by a sergeant that [he] could not return without being arrested," which prompted him to apply for a temporary order of protection against respondent requesting a full stay away. Petitioner's other submissions do not discredit respondent's version of the facts.
Additionally, petitioner attaches a copy of the transcript from an appearance, on August 23, 2019, in Putnam Family Court, when he applied for an emergency temporary order of protection against his brother by filing a family offense petition under Docket No. O-00723-19. The application was heard ex parte by the Hon. Mary Anne Scattaretico-Naber, J.F.C.
The transcript from that day reflects petitioner stating, on the record, that he lived in California after decedent passed away, that he recently moved to Putnam County from Nevada on or about August 12, 2019, that petitioner was "temporarily" staying at a friend's residence and a temporary shelter which was not "official," and that respondent perpetrated efforts to cause him and his daughter to "liv[e] below the support preserve level," despite the trust which petitioner believed had "indicated" that his family would have a "stable" life. Petitioner further testified on the record he was "indigent," that respondent and the trustee had "initiated an alleged fraud scheme which has kept [him] financially disabled," and that respondent had "illegally removed [him] by fraud from [his] residence by calling the police." Judge Scattaretico-Naber interjected petitioner's soliloquy, advising him that no family offense had apparently occurred since the parties' "financial dispute" appeared to be a "Surrogate issue" revolving around estate and probate matters. Petitioner further testified that he had previously filed another family offense petition in this Court against respondent "about a year ago," which he conceded was dismissed for failure to state a cause of action. Judge Scattaretico-Naber responded that she was reading from petitioner's 2017 family offense petition and urged him to seek legal advice from an attorney or apply to legal aid services for assistance, expressing that his new filing before her was not in the proper forum. The transcript reflects that Judge Scattaretico-Naber elected not to "outright" dismiss petitioner's family offense petition, declined to issue any temporary order of protection in favor of petitioner and, in fact, referenced respondent's pending cross family offense petition against petitioner, which petitioner acknowledged he was served with and claimed was a "false and forged document." Petitioner averred to Judge Scattaretico-Naber that respondent commenced family court proceedings against him out of "retaliation" based on the incident at the South-Glo property on August 13, 2019. Judge Scattaretico-Naber, nonetheless, still found no good cause to issue a temporary order of protection in favor of petitioner and adjourned that proceeding.
Lastly, petitioner annexes a copy of the transcript from September 6, 2019, when Judge Scattaretico-Naber conducted a first appearance and arraignment on the parties' cross family offense petitions pending before her. That transcript reflects that while both parties had attorneys at the time, no settlement was reached. Judge Scattaretico-Naber conducted an off-the-record conference with counsel outside of the parties' presence, and later advised the attorneys, on the record, that the parties' dispute centered on issues that would be more properly litigated in Surrogate's Court and were not Family Court issues. Judge Scattaretico-Naber declined to address matters about the corporation, conveying that she was without "jurisdiction to do so" and, ultimately, adjourned the family court case for an all-purpose conference.
The caption of this transcript reflects that parties' family court proceedings are under Putnam Family File No. 12770.
In reply, respondent presses that his claims are corroborated by petitioner's submissions and reveal how petitioner engaged in misconduct and is unfit for the office in question, including his theft of monies from South-Glo's offices in 2019 and frivolous litigious filings. Respondent also urges that the conflict and hostility between the parties provide sufficient grounds to deny the petition. Respondent's reliance on Matter of Edwards (274 AD 244 [4th Dept 1948]) in his reply papers is misplaced since the facts from that case are distinguishable. In contrast to the matter at hand, Edwards dealt with issues relative to the removal of a trustee (see id. 248-250); whereas this case involves an applicant petitioning for the appointment of a successor trustee.
Respondent also refers to a purported decision rendered from the First Department on November 9, 2022 titled "Matter of Jurzykowski"; but he provides no specific citation for that case, and contrary to what his papers say, no "copy [is] affixed" to respondent's reply papers. The Court's research reveals that the case relied upon by respondent is from 1971: Matter of Jurzykowski (36 A.D.2d 488 [1st Dept 1971], affd 30 N.Y.2d 510 [1972]), where an application for successor trustee was denied, as respondent suggests, because the Court found that a conflict of interest could not be "mitigated," and since the "hostility" between the family "could interfere with the proper administration of the trust" (Matter of Jurzykowski, 36 A.D.2d at 491-492).
2. Petitioner's Unfitness
The collective submissions before the Court, when viewed together, lead the undersigned to firmly conclude that respondent is correct in that petitioner is unfit to be appointed successor trustee of the subject trust. Additionally, a fair examination of the motion submissions lead this Court to further conclude that petitioner's improvidence disqualifies him for the office he pursues.
The Court finds that respondent satisfied his burden in proving that petitioner is unfit to act as the successor trustee. The information presented to the undersigned also establishes grounds to deny the petition due to petitioner's improvidence (see SCPA 707 [1] [d]).
"Improvidence refers to habits of mind and conduct which become a part of the [person] and render him [or her] generally, and under all ordinary circumstances, unfit for the trust or employment in question" (Matter of Britton, 173 Misc.2d 300, 302-303 [Sur Ct, Westchester County 1997]; see Matter of Flood, 236 NY 408, 410 [1923]). In finding petitioner improvident for the fiduciary role, this Court may consider petitioner's past behavior disclosing a continuing feud with his respondent-brother which petitioner has exacerbated by his own actions, the police intervention necessitated by petitioner's conduct including breaking into South-Glo's offices to steal money, the various filings petitioner has made against respondent, and the record from the family court proceedings (see generally Matter of Dolansky, 196 Misc. 802, 803-804 [Sur Ct, Schenectady County 1949]). While indigency alone would not be enough to justify denial of his application, this Court has concerns about petitioner's present financial stability, the ability to manage his own affairs and that of his immediate family, his possible ulterior motive in seeking the appointment to intensify the parties' feud, and whether petitioner will rightfully and properly discharge his duties as successor trustee (see generally id.; compare Matter of Stege, 164 Misc. 95, 96-98 [Sur Ct, Sullivan County 1937]).
The Court further finds and concludes that petitioner is "unfit for the execution of the office" (SCPA 707] [1] [d]), based on the papers submitted and the turbulent history between the parties evincing conflict, self-interest, and hostility which has apparently intensified over the last few years. The submissions, including those proffered by the petitioner himself, raise apprehension about petitioner's ability to manage the trust based on his erratic behavior and questionable conduct (see Matter of Coons, 149 A.D.3d at 733). Given petitioner's status as a beneficiary of the decedent's estate, commission of troublesome (and criminal) conduct, and his prior history in engaging in unnecessary litigation against respondent, the Court find's petitioner ineligible to serve as the successor fiduciary of the trust in question (see Matter of Tarka, 41 A.D.3d 345 [1st Dept 2007]; compare Matter of Piterniak, 16 A.D.3d 513, 514 [2d Dept 2005]).
Indeed, the Court can aptly consider petitioner's prior litigation as "evidence of . . . insurmountable hostility between parties" (Matter of Palma, 40 A.D.3d at 1158), which ought to preclude petitioner from being awarded the letters here. And especially in view of the ongoing antagonism between the parties, appointing petitioner as the successor trustee may well jeopardize the trust and its assets, including the South-Glo corporation and real property (cf. Matter of Beharrie, 84 A.D.3d 1227, 1229 [2d Dept 2011]). The motion submissions disclose that over the last few years, the relationship between the parties has significantly deteriorated, "is palpably poisoned[,] and the hope of cooperation between [them] is, at best, vain" (Matter of Venezia, 2 Misc.3d 1008[A], *4 [Sur Ct, Kings County 2004]). In short, the Court has serious concerns regarding petitioner's qualifications in carefully and properly handling the subject trust (compare Matter of Lurie, 58 A.D.3d 575, 576 [1st Dept 2009], lv dismissed 20 N.Y.3d 1031 [2013]). Although the undersigned is sympathetic to the familial situation and the parties' positions, the record and particular circumstances of this case firmly support the final determination reached herein by this Court.
As for the balance of respondent's motion requesting to appoint him or the Public Administrator as successor trustee, those forms of relief are not properly before this Court in this proceeding and are denied (see Matter of Weininger, 257 A.D.2d 537, 538 [1st Dept 1999]; Matter of Modell, 38 Misc.3d 1216[A], *1 [Sur Ct, Nassau County 2012]; see also SCPA 1502 [2]).
Respondent's request for a stay of all proceedings in this Court is discretionary (see CPLR 2201); and is effectively rendered moot by virtue of the petition being dismissed. Thus, that branch of respondent's motion is likewise denied (see generally Matter of Tenenbaum, 81 A.D.3d 738, 739 [2d Dept 2011]; compare Matter of Chi-Chuan Wang, 92 A.D.3d 453, 453 [1st Dept 2012]).
The Court has reviewed and considered the additional contentions of the parties not squarely addressed herein. To the extent any other relief requested by the parties was not specifically addressed, it is denied. Accordingly, it is hereby:
Ordered that that branch of the motion of respondent TREVOR SOUTHLEA (Mot. Seq. No. 1), to dismiss the petition of petitioner KENDALL SOUTHLEA requesting appointment as the successor trustee of the testamentary trust created in decedent's will, is granted; and it is further
Ordered that all other branches of respondent's motion are either rendered moot or otherwise denied; and it is further
Ordered and Adjudged that the petition of KENDALL SOUTHLEA seeking appointment as the alternate/successor trustee of the testamentary trust created in Paragraph "SECOND (a)" of the decedent's will, is denied and dismissed in its entirety; and it is further
ORDERED that this proceeding is disposed, and the Clerk of the Court shall accordingly mark the same; and it is further
ORDERED that respondent TREVOR SOUTHLEA shall cause a copy of this "Decision and Order" to be served with notice of entry upon petitioner KENDALL SOUTHLEA by first-class mail within fifteen (15) days from the date herein; and respondent shall file proof of such service with the Court.
The foregoing constitutes the final decision and order of this Court.