Opinion
November 9, 1973
Carroad Carroad for Kenneth Carroad, petitioner.
Winthrop, Stimson, Putnam Roberts for Edmund M. Hoffman, respondent.
This is an application to obtain the consent of the court to the transfer of an accounting proceeding now pending in the Supreme Court. An accounting proceeding by the executors of this estate is presently pending in this court as well as an accounting proceeding by the trustees of the trust under the will of testatrix. There are also three accounting proceedings pending by the executors and trustees in the estate of Mark Weitzenhoffer, the husband of testatrix. Answers and objections have been filed in all five proceedings based upon alleged errors in the accounts and alleged misconduct of petitioner Carroad who is a copetitioner in all of the proceedings. Petitioner Carroad has also instituted an accounting proceeding as trustee of an inter vivos trust in Supreme Court, New York County. The court is asked to consent to the transfer of this proceeding.
In spite of the language contained in CPLR 325 (subd. [e]) the cases have held that no prior consent of the Surrogate is necessary to the requested transfer and it is the court's duty to accept the transfer if it be so ordered by the Supreme Court. ( Garland v. Raunheim, 29 A.D.2d 383; Morse v. Penzimer, 58 Misc.2d 156; Matter of Meister, 55 Misc.2d 1050.) Moreover this court cannot reach an opinion on the propriety of the proposed transfer since no answers or objections have as yet been filed in the Supreme Court proceeding and the question of whether there exist any identity of issues cannot be determined. While the Supreme Court proceeding concerns an inter vivos trust, it is alleged that upon the decedent settlor's death the principal is payable to her estate, and the Supreme Court may view this proceeding as so related to the "affairs of decedents" to permit transfer to this court (N.Y. Const., art. VI, § 12, subd. d; SCPA 201, subd. 3). (Cf. Matter of Leverich, 135 Misc. 774, affd. without opn. 234 App. Div. 625.)
Consequently, although incomplete information is available at this stage, and although consent to receive this transfer is not requisite, this court will freely consent to the transfer, if the Supreme Court upon consideration of all of the facts and upon a proper motion being made therein is of the opinion that the proceeding should be transferred.