Mildred B. DeVito Revocable Tr. v. DeVito

Full title: Mildred B. DeVito Revocable Trust, Respondent, v. Arthur DeVito, Appellant.

Court: Supreme Court, Appellate Term, Second Dept., 9th & 10th Judicial Districts

Date published: Nov 18, 2019

2019 N.Y. Slip Op. 84875 (N.Y. App. Term 2019)

Opinion

Motion No: 2019-01488 SC

11-18-2019

Mildred B. DeVito Revocable Trust, Respondent, v. Arthur DeVito, Appellant.

THOMAS A. ADAMS, P.J.

BRUCE E. TOLBERT

JERRY GARGUILO, JJ.

DECISION & ORDER ON MOTION

Motion by appellant for a stay pending the determination of an appeal from an order of the District Court of Suffolk County, Third District, entered August 8, 2019.

Upon the papers filed in support of the motion, it is

ORDERED, on the court's own motion, that, it appearing that there is a question of fact as to whether Mildred B. DeVito is an adult incapable of adequately prosecuting her rights (CPLR 1201), the matter is remitted to the District Court for a hearing to be held within 30 days of this decision and order on motion to determine whether Mildred B. DeVito is an adult incapable of adequately prosecuting her rights and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202. The District Court shall cause its determination to be filed with the clerk of this court with all deliberate speed; and it is further,

ORDERED that the appeal and appellant's motion are held in abeyance in the interim.

A trust is not a legal entity that can sue or be sued in a court of law (see CPLR 1004; Matter of Straut, 126 NY 201 [1891]; Salanitro Family Trust v Gorina, 49 Misc 3d 153[A] 2015 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Ronald Henry Land Trust v Sasmor, 44 Misc 3d 51 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and legal title to the trust estate is vested by statute in the trustees (EPTL 7-2.1 [a]). Thus, this proceeding is maintainable, if at all, only if Mildred B. DeVito, who purportedly signed the petition as trustee, is the real party in interest. Inasmuch as the moving papers indicate that Mildred B. DeVito may be an adult incapable of adequately prosecuting her rights, the matter must be remitted to the District Court for a hearing to be held within 30 days of this decision and order on motion to determine whether Mildred B. DeVito is an adult incapable of adequately prosecuting her rights and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202. In addition, this court will not consider respondent's opposition papers unless and until Mildred B. DeVito, or, as the case may be, her guardian ad litem, has been substituted for the trust as petitioner.

ENTER:

Paul Kenny

Chief Clerk