Opinion
2008-97286/A.
Decided March 21, 2011.
TO:STEPHEN E. DIAMOND, ESQ., VERGILIS, STENGER, ROBERTS, DAVIS DIAMOND, LLP, Attorneys for Petitioner.
CHRISTINE CHAMBERS SZAFRANSKI, Wappingers Falls, New York, WILLIAM GRACE CRANE, ESQ., Attorney for Objectant/Cross-Movant, DENIS M. CHAMBERS, Poughkeepsie, New York.
Petitioner Christine Chambers Szafranski (hereinafter the "petitioner") moves for summary judgment dismissing Denis M. Chambers' (hereinafter the "objectant") objections to the issuance of letter of trusteeship for the trust created under Article THIRD of the Last Will and Testament of George J. Chambers. The objectant cross-moves for an order (1) reopening the proceeding to compromise and settle the cause of action against Anthony Balzano-Schoen and (2) modifying the decree of this court dated May 10, 2010 with respect to the allocation of settlement proceeds between the decedent's conscious pain and suffering and wrongful death. For the following reasons, it is ordered that the petitioner's motion for summary judgment is granted. It is further ordered that the objectant's cross-motion is denied in its entirety.
SUMMARY JUDGMENT
It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067.) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681.) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562.)
The decedent's Will was admitted to probate on August 28, 2008 and the petitioner was thereafter duly appointed as executrix. The decedent's Will divides his residual estate into two equal parts: the petitioner receives one-half outright and the objectant receives the other half in trust with income payable therefrom in installments of no less than quarterly.
On or about September 14, 2010, petitioner petitioned this court for letters of trusteeship. The objectant filed objections to the petition claiming the trust established in the decedent's Will violates EPTL 9-1.1.
The rule against perpetuities embodies the principle that "it is socially undesirable for property to be inalienable for an unreasonable period of time" (Symphony Space v. Pergola Props., 88 NY2d 466, 475.) EPTL 9-1.1 sets out New York's current statutory rule against perpetuities. Subdivision (a), the suspension of alienation rule, deems void any estate in which the conveying instrument suspends the absolute power of alienation for longer than lives in being at the creation of the estate plus 21 years (Id. at 476). Subdivision (b) sets forth the prohibition against remote vesting and states that "[n]o estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate and any period of gestation involved" (EPTL 9-1.1 [b]). The Court of Appeals has described subdivision (b) as "a rigid formula that invalidates any interest that may not vest within the prescribed time period" and has "capricious consequences." (Wildenstein Co. v Wallis, 79 NY2d 641, 647-648.)
The objectant claims that the ineluctable effect of the decedent's failure to name a remainderman to the trust is to render the trust in violation of EPTL 9-1.1. This is not the case. Although the construction of the trust is not properly before the court at this time, it remains that the trust will not be invalidated because the testator failed to make a provision for payment over of the remainder of the trust in the event it is still in existence at his son's death. (In re Estate of Krivan, 32 AD2d 551 [2nd Dept. 1969].) Based on the terms of the decedent's Will, the court may reasonably determine that the decedent intended the trust to continue until terminated by the objectant's death. Therefore, no vesting in violation of EPTL 9-1.1 occurs because the trust must vest no later than at the death of the objectant, i.e. within a life in being at the time the interest was created. It follows that there can be no unlawful suspension of the power of alienation beyond the permissible period since the trustee is not given the power to terminate the trust within some arbitrary time period unconnected with the life of the objectant. Therefore, it is ordered that the petitioner shall have judgment dismissing the objectant's objections in their entirety.
OBJECTANT'S CROSS-MOTION
The objectant has failed to establish entitlement to an order either reopening the proceeding to compromise and settle the cause of action against Anthony Balzano-Schoen or modifying this court's May 10, 2010 decree. The objectant's affidavit is self-serving and conclusory and demonstrates little more than that in hindsight he wishes he had attempted to make a different agreement as to the allocation of settlement proceeds between wrongful death and conscious pain and suffering. The objectant's assertion pertaining to what the decedent might have done if he had know he was going to be killed by a drunk driver and thereafter receive an award of $900,000 is speculative and is insufficient to invalidate the trust. The objectant does not allege any legal basis to permit this court to set aside his prior waiver and consent. ( See, Matter of Frutiger, 29 NY2d 143 [party seeking to set aside probate decree entered upon his consent must show that such consent was obtained by fraud or overreaching]; Matter of Westberg, 254 AD 320 [1st Dept. 1938][consent obtained as a product of misrepresentation or misconduct can be set aside]; Matter of Hinderson, 4 Misc 2d 559 [NY Sur. Ct. 1956], aff'd 2 AD2d 682 [2nd Dept. 1956][newly discovered evidence, clerical error or other sufficient cause justified reopening of decree].) The objectant's unsubstantiated and conclusory allegations that he did not appreciate or understand the significance of the waiver and consent are insufficient. Therefore, the objectant's cross-motion is denied in its entirety.
Counsel for the petitioner is directed to submit a decree on notice consistent with the foregoing within twenty (20) days from the date of this decision.
The Court read and considered the following documents upon these applications:
PAGES NUMBERED 1.Notice of Motion.............................. 1 Affidavit-Christine Chambers Szafranski..... 1 Affirmation-Diamond......................... 1-6 Exhibits ................................... A-C 2.Notice of Cross-Motion ....................... 1 Affirmation-Boccia ......................... 1 Affidavit-Denis M. Chambers ................ 1-3 Exhibits ................................... A-H Memorandum of Law .......................... 1-5 Supplemental Memorandum .................... 1 3.Affirmation-Diamond........................... 1-8 Affirmation-Chambers........................ 1-3 Exhibit..................................... 1 Affidavit-Christine Chambers Szafranski..... 1-4 This constitutes the decision of the Court.