Opinion
8751, M-2514. M-2795.
June 13, 2006.
Order, Surrogate's Court, New York County (Renee R. Roth, S.), entered on or about January 30, 2006, which, insofar as appealed from, denied appellant former trustee's motion to dismiss respondent grantor's objections to appellant's compulsory accounting as time-barred, unanimously affirmed, with costs.
Proskauer Rose LLP, New York (Bertrand C. Sellier of counsel), for appellant.
Slade Newman LLP, New York (Ira L. Slade of counsel), for respondent.
Before: Tom, J.P., Saxe, Friedman, Sullivan and McGuire, JJ., Concur.
The former trustee waived her statute of limitations defense by failing to raise it in response to the grantor's petition to compel an accounting (CPLR 3211 [e]; cf. Addesso v. Shemtob, 70 NY2d 689 [1987]). As the Surrogate explained in rejecting the former trustee's argument that she could not state her limitations defense before the grantor had stated her particular objections to the accounting (failure to properly value trust assets, conflict of interest and self-dealing, improper investments loans and gifts, and improper payment of legal and accounting fees), an accounting trustee's limitations defense does not run against the particular acts allegedly committed by the trustee in violation of her fiduciary duties, but against the trustee's obligation to account ( cf. Matter of Barabash, 31 NY2d 76, 80 [1972]). Otherwise, as the Surrogate stated, the parties and courts would be burdened by full-fledged accountings that could have been avoided.