Opinion
Motion No: 2019-01488 SC
12-14-2020
Mildred B. DeVito Revocable Trust, Respondent, v. Arthur DeVito, Appellant.
JERRY GARGUILO
ELIZABETH H. EMERSON, JJ.
DECISION & ORDER ON MOTION
Appeal from an order of the District Court of Suffolk County, Third District, entered August 8, 2019. By decision and order of this court dated November 18, 2019, on the court's own motion, this court held the appeal and a motion by respondent seeking a stay pending the determination of the appeal in abeyance so that a hearing could be conducted to determine whether Mildred B. DeVito, who purportedly signed the petition as trustee, is an adult incapable of adequately prosecuting her rights. This court has been advised that Mildred B. DeVito is deceased.
On the court's own motion, it is
ORDERED that the appeal and pending motion for a stay are held in abeyance pending a substitution of the petitioner.
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, if a trustee is substituted as the real party in interest. In our decision and order dated November 18, 2019, this court noted that it would not consider the papers submitted in opposition to the motion for a stay unless and until Mildred B. DeVito, or, as the case may be, her guardian ad litem, had been substituted for the trust as petitioner. Since Mildred B. DeVito is deceased, an appropriate individual, if one exists, must be substituted as the real party in interest.
ENTER:
Paul Kenny
Chief Clerk