Opinion
2013-328
07-20-2017
In the MATTER OF the PROCEEDING PURSUANT TO SCPA 2102 (4) FOR A CERTAIN TRUST AGREEMENT DATED JUNE 5, 1990. William M. Moran, Petitioner, v. Danny P. Moran, Respondent.
Robert L. Adams, Esq., attorney for petitioner, Martin, Shudt, Wallace, DiLorenzo & Johnson, 258 Hoosick St., Ste. 201, Troy, NY 12180 Richard D. Cirincione, Esq., attorney for respondent, McNamee, Lochner, Titus & Williams, PC, 677 Broadway, Ste. 500, Albany, NY 12207 Patricia J. Shevy, Esq., guardian ad litem for Joan Moran, The Shevy Law Firm, LLC, 7 Executive Centre Dr., Albany, NY 12203
Robert L. Adams, Esq., attorney for petitioner, Martin, Shudt, Wallace, DiLorenzo & Johnson, 258 Hoosick St., Ste. 201, Troy, NY 12180
Richard D. Cirincione, Esq., attorney for respondent, McNamee, Lochner, Titus & Williams, PC, 677 Broadway, Ste. 500, Albany, NY 12207
Patricia J. Shevy, Esq., guardian ad litem for Joan Moran, The Shevy Law Firm, LLC, 7 Executive Centre Dr., Albany, NY 12203
Stacy L. Pettit, J. Pending before the Court is a motion and two cross motions for relief in this proceeding pursuant to SCPA 2102 (4).
The issues in this proceeding arise out of a certain trust agreement dated June 5, 1990. The trust was created between respondent, as grantor, and petitioner and respondent, as co-trustees, for the benefit of Joan Moran, the mother of petitioner and respondent. The trust is what is known as a "trigger trust ," meaning that it terminates upon the happening of a certain occurrence and is intended to avoid using one's assets to pay for long-term care where the costs may be covered through the Medicaid program. The trust here provides for distributions of income and, in the discretion of the trustees, principal, during the beneficiary's lifetime. Upon the condition being triggered, or upon the beneficiary's death, the trust shall be distributed in equal shares to petitioner and respondent. The assets of the trust are the beneficiary's residence in the City of Albany and an investment account worth several hundred thousand dollars.
Trigger trusts are no longer permitted. Legislation was enacted in 1990s that foreclosed the use of a trigger trust as a Medicaid planning device, as such dispositions are contrary to the public policy of New York; however, it does not apply retroactively to the trust at issue here (see Bourgeois v. Stadtler , 256 A.D.2d 1095, 1096, 685 N.Y.S.2d 166 [4th Dept. 1998], lv denied 93 N.Y.2d 805, 689 N.Y.S.2d 429, 711 N.E.2d 643 [1999] ; see also EPTL 7-3.1 [c]; 42 USC 1396p [c], [d] [e] ).
Joan Moran resided at her home in the City of Albany until June 2010, when she began to live at Colonie Manor, a facility licensed as a private proprietary adult home. While at Colonie Manor, Moran fell and sustained an injury, prompting her transfer to St. Peter's Hospital for treatment. Upon her discharge from St. Peter's, Moran was taken to Daughters of Sarah, a skilled nursing facility, for rehabilitation. In February 2011, Moran ultimately ended up moving back to her residential home in Albany, where she has continued to reside to this day.
In April 2013, petitioner commenced this proceeding pursuant to SCPA 2102 (4) against respondent. Specifically, petitioner sought the following relief: (1) an order requiring respondent to account as trustee of the trust; (2) removal of respondent as trustee and appointment of petitioner as sole trustee; and (3) termination of the trust and distribution of the principal and income, together with costs, attorney's fees and interest, based on the argument that the termination of the trust was triggered by Moran's admission to Colonie Manor or her admission to Daughters of Sarah. Initially, the Court ordered respondent to account. Respondent filed an account for the period of January 31, 2010 through April 30, 2013. Thereafter, the parties agreed to pursue the issue of whether the trust had terminated, prior to addressing accounting issues. A guardian ad litem was appointed for Moran in both proceedings and jurisdiction was obtained over all interested parties. The parties have engaged in discovery and have now submitted their motions for this Court's determination. Petitioner has moved for summary judgment granting an order removing respondent as trustee and appointing either an institutional trustee or petitioner as sole trustee. Respondent has opposed the removal motion and cross-moved for an order dismissing petitioner's claim that the trust terminated upon Moran's admission to either Colonie Manor or Daughters of Sarah. Petitioner has replied on his removal motion, opposed respondent's cross motion with respect to the trust termination and cross-moved for summary judgment in his favor on the trust termination issue. Respondent has replied on his trust termination cross motion and opposed petitioner's trust termination cross motion. Petitioner has replied on his trust termination cross motion. The guardian ad litem has submitted an affidavit in support of respondent's cross motion regarding the trust termination and in opposition to petitioner's removal motion, specifically suggesting that the removal issue be determined after the accounting is brought up to date.
A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212 [b] ). "[T]he motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact" and, "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion" ( CPLR 3212 [b] ).
Turning first to the issue of removing respondent as trustee, SCPA 711 provides the grounds for removing a fiduciary. As is relevant here, such grounds include the lack of qualifications by reason of dishonesty, improvidence, want of understanding or being otherwise unfit, as well as improvidently managing the property. Furthermore, SCPA 711 (11) specifically provides that, "[i]n the case of a lifetime trustee, a person interested may present to the court having jurisdiction a petition praying for a decree removing the trustee or suspending or modifying his [or her] appointment and that the trustee may be cited to show cause why a decree should not be made accordingly where the supreme court, if it had jurisdiction, would have cause to remove the trustee or to suspend or modify his [or her] appointment." EPTL 7-2.6 provides that Supreme Court has power to remove or suspend a trustee who has violated or threatens to violate the trust, who is insolvent or whose insolvency is imminent or apprehended or who for any reason is a person unsuitable to execute the trust" ( EPTL 7-2.6 [a] [2]; see Matter of Hall , 275 A.D.2d 979, 979, 713 N.Y.S.2d 622 [4th Dept. 2000] ). " ‘[R]emoval of a trustee is a drastic action not to be undertaken absent a clear necessity,’ and an individual seeking removal bears the burden of demonstrating that the trustee has violated or threatens to violate his or her trust or is otherwise unsuitable to execute the trust" ( Matter of Giles , 74 A.D.3d 1499, 1503, 902 N.Y.S.2d 717 [3d Dept. 2010], quoting Matter of Rose BB. , 243 A.D.2d 999, 1000, 663 N.Y.S.2d 415 [3d Dept. 1997] ). "[C]ourts are required to exercise the power of removal sparingly and to nullify the testator's choice of fiduciary only upon a clear showing of serious misconduct that endangers the safety of the estate" ( Matter of Venner , 235 A.D.2d 805, 807, 653 N.Y.S.2d 150 [3d Dept. 1997] ; see Matter of Braloff , 3 A.D.2d 912, 913, 162 N.Y.S.2d 620 [2d Dept. 1957], affd 4 N.Y.2d 847, 173 N.Y.S.2d 817, 150 N.E.2d 243 [1958] ).
In support of his motion to remove respondent and appoint an institutional trustee, petitioner has submitted an attorney affidavit, with exhibits A through F. Petitioner argues that respondent has breached his fiduciary duties as a trustee; specifically, he has not exercised reasonable care, skill and caution to make and implement investment and management decisions regarding the trust. Based on respondent's deposition testimony, petitioner contends that respondent is unaware of the property and assets contained in the trust, respondent does not know the purpose of the trust and does not monitor it, he does not review statements from the investment company holding the trust fund or balance the account, and he does not share trust information with petitioner. Petitioner alleges that respondent has given the financial advisor associated with the trust full control over investment decisions. Petitioner further argues that respondent has exposed himself to criminal liability. This argument is based on respondent's repeated invocation of his Fifth Amendment right against self-incrimination during his pretrial deposition in response to questioning about how Moran's home health care aides are paid and respondent's access to Moran's accounts and the trust.
It is well-settled "that a negative inference may be drawn in the civil context when a party invokes the right against self-incrimination" (El-Dehdan v. El-Dehdan , 26 N.Y.3d 19, 37, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015] ; see Marine Midland Bank v. Russo Produce Co. , 50 N.Y.2d 31, 42, 427 N.Y.S.2d 961, 405 N.E.2d 205 [1980] ; Searle v. Cayuga Med. Ctr. at Ithaca , 28 A.D.3d 834, 837, 813 N.Y.S.2d 552 [3d Dept. 2006] ; see also Baxter v. Palmigiano , 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 [1976] ). "While a party may not be compelled to answer questions that might adversely affect his criminal interest, the privilege does not relieve the party of the usual evidentiary burden attendant upon a civil proceeding; nor does it afford any protection against the consequences of failing to submit competent evidence" (Access Capital v. DeCicco , 302 A.D.2d 48, 51, 752 N.Y.S.2d 658 [1st Dept. 2002] ).
Petitioner relies on respondent's deposition testimony in support of his motion. At the pretrial deposition, respondent testified that he resides in the upstairs apartment of his mother's two-family residence on Beacon Avenue in the City of Albany. He has resided there for his entire life, although he owns real estate in other municipalities where he has resided on occasion. Respondent pays $ 450 per month in rent to Moran and uses that money for her expenses, without depositing it in any account. Moran is bedridden and difficult to understand when she speaks. Respondent testified that Moran was mentally and physically capable at the time she returned home from Daughters of Sarah. While she initially was tended to by aides from a home health care aide company, respondent thereafter sought out his own aides privately. These aides live in Moran's apartment with her full time. While Moran was at Daughters of Sarah, it was paid for by her insurance initially, and then it became private pay. Respondent testified that he never used Moran's funds — either in the trust or not — for his own benefit. The only checks he has written from the trust are for property taxes and legal fees. Respondent testified that Moran's personal physician indicated that if she was home for 30 days incident-free, he would sign off on her returning to Colonie Manor. When Moran did have an incident free month at her residence, they decided that she should stay home. Respondent testified that he did not know what kind of assets were held by the trust, he did not monitor it or keep track of it, he has not made any changes; rather, he let the financial advisor have control. He testified that he did not open envelopes he receives from the company where the trust investment account is held, and kept them in a drawer unopened. He gave certain documents to Moran's attorney for tax return purposes, and kept the tax documents in a separate drawer. Respondent stated that he did not notify petitioner when he received statements, noting that petitioner had cut off communication with respondent and Moran years earlier. He later testified that he believed the trust contained money and the home. He stated that he did not review the checkbook statements for accuracy, nor did he keep a checkbook register up to date. Respondent has opposed petitioner's motion to remove him and appoint an institutional trustee. In opposition, respondent argues that petitioner has failed to meet his heavy burden of establishing a basis for removal of respondent as trustee. Specifically, respondent asserts that petitioner has not alleged or provided proof that the trust terms were violated or that the assets of the trust have been wasted, damaged or endangered in any way. Nor, respondent contends, has petitioner alleged that the purpose of the trust is not being met, as Moran is being well-cared for and is content residing in her home. Further, there is no allegation or proof that respondent's delegation to the financial advisor of management of the trust investment account has been detrimental to the trust. While petitioner contends that respondent has excluded him from management of the trust, respondent counters that petitioner has shirked his duties as trustee. Finally, respondent also asserts that the Court should consider the intentions of the grantor of a trust — here, respondent is the grantor — with respect to the selection of a trustee. In his own affidavit, respondent explained that he continues to rely on the financial advisors that his mother had used for managing assets. He further states that he is now reviewing the monthly statements related to the trust.
In reply, petitioner asserts that removal of a fiduciary does not require actual financial losses to the trust; rather, it is the risk of claims arising from respondent's conduct as trustee which warrant his removal. The only basis for petitioner's allegations of risk to the trust, however, are based on the negative inference derived from respondent's invocation of his Fifth Amendment right against self-incrimination in response to questions regarding the payment of home health aides for Moran's care. As respondent explained that his repeated pleading the Fifth resulted from feelings that he was being harassed and he did not fully understand what it meant to invoke the Fifth Amendment, he has raised a question of fact as to whether his conduct does create any imminent risk to the trust. The guardian ad litem suggests that the trust accounting filed by respondent in 2013 be brought current before a determination is made as to whether respondent should be removed as trustee. She points out, although he has not exercised the reasonable care required of a trustee, the trust nonetheless appears unharmed and has been managed by a financial advisor who has prudently invested the assets.
Viewing the evidence in the light most favorable to respondent, as the nonmoving party (see Matter of Yengle , 113 A.D.3d 918, 920, 979 N.Y.S.2d 410 [3d Dept. 2014] ), the Court finds that petitioner has failed to establish, as a matter of law, sufficient evidence of serious misconduct such as would warrant respondent's removal as trustee at this time (see Matter of Venner , 235 A.D.2d 805, 808-809, 653 N.Y.S.2d 150 [3d Dept. 1997] ). EPTL 11-2.3 permits a trustee to delegate investment and management functions, provided the trustee exercises care, skill and caution in doing so, which includes periodically reviewing the delegee's exercise of the delegated function and compliance with the scope and terms of the delegation (see EPTL 11-2.3 [c] [1] ). Accordingly, delegation of investment management to the financial advisor by respondent is not a breach of fiduciary duty; however, respondent's admitted lack of oversight with respect to the advisor's exercise of the delegated investment authority is a failure on his part to exercise the requisite care, skill and caution with respect to investment delegation (see Scalp & Blade v. Advest, Inc. , 300 A.D.2d 1068, 1069, 755 N.Y.S.2d 140 [4th Dept. 2002] ). Nonetheless, as respondent asserts he is now monitoring the trust, and there is no evidence of harm or actual risk of harm to the trust, the Court declines to grant petitioner's motion to remove respondent at this time. Although petitioner alleges that respondent has behaved in a way which may subject himself to criminal liability and harm the trust, there is no evidence of actual or imminent damage to the trust. Accordingly, petitioner's motion to remove respondent as trustee is denied, without prejudice to it being raised in the context of the accounting proceeding should additional facts regarding his acts as trustee come to light.
The Court turns next to respondent's cross motion for an order dismissing that cause of action in the petition seeking a determination that the trust terminated upon Moran's admission to either Colonie Manor or Daughters of Sarah. The relevant provisions of the trust are contained in paragraph two:
"(2) (b) After thirty (30) months from the date of execution of this Trust agreement, or after the period of time required by 42 U.S.C. Section 1396p (c) (1) (B) [the Medicare Catastrophic Act of 1988], whichever shall first occur, the Trustees shall dispose of the corpus and income of the Trust, if any, as follows:
(i) For so long as JOAN P. MORAN resides elsewhere than at a skilled nursing facility, nursing home, or other residential care facility , the Trustees shall pay to or for the benefit of JOAN P. MORAN,
all of the net income of the Trust, if any, in such proportion and in such amounts as the Trustees, in their sole absolute discretion deem necessary to maintain the present standard of living of JOAN P. MORAN, together with such sums of the trust principal as the Trustees, in their sole and absolute discretion, deem appropriate for such purposes.
(ii) Upon the admission of, or the continued care of JOAN P. MORAN, as a permanent or chronic care resident or patient in a skilled nursing facility, nursing home, or other residential care facility , all distributions of income and principal to JOAN P. MORAN shall
cease and JOAN P. MORAN shall have no further legal or beneficial interest in this Trust.
(iii) At the time that JOAN P. MORAN meets the requirements of paragraph 2 (b) and 2(b) (ii) herein, or dies, whichever occurs first, this Trust shall terminate and the principal and accumulated income, if any, shall be distributed as hereinafter provided" (emphasis added).
In support of his cross motion, respondent submits his own affidavit, an attorney affirmation with exhibits, including deposition testimony, and a memorandum of law. In his own affidavit, respondent, as grantor of the trust, states that it was never his intention for the trust to terminate if Moran required temporary or rehabilitative care, nor did he intend for the trust to terminate prematurely based on a technicality. Respondent contends that Moran received rehabilitative and temporary care at a skilled nursing facility — Daughters of Sarah — but she was not admitted as a permanent or chronic care resident or patient. He points out that she returned to her home in 2011 and has remained there for the past six years and, therefore, could not have been a permanent or chronic resident of a facility.
Sandra McNary, the executive director of Colonie Manor testified that Colonie Manor is an assisted living facility or an adult care facility. The Colonie Manor operating certificates identify it as a "private proprietary adult home" or "adult home." McNary explained that, in June 2010, Moran and Colonie entered into a contract wherein Colonie Manor would provide living arrangements based on the Social Services Law and associated regulations. She stated that payments to Colonie Manor could be made by private pay, long-term care insurance, or veteran aid assistance. Moran remained a resident of Colonie Manor, despite her absence, while receiving treatment at St. Peter's Hospital and Daughters of Sarah. She was discharged as a resident of Colonie Manor on March 1, 2011 after she had returned to her home.
Susan Dulkis was deposed on behalf of Daughters of Sarah. She testified that Daughters of Sarah is a residential health care facility, and may also be referred to as a skilled nursing facility. It is licensed by the Department of Health, and the license specifically states "residential health care facility," followed by the letters SNF for skilled nursing facility. She testified that Moran was admitted on November 24, 2010 and was discharged on February 18, 2011, and was there for the purposes of rehabilitation with a plan for discharge.
In opposition to respondent's cross motion, and in support of his cross motion for relief in his favor with respect to the trust termination, petitioner has submitted his own affidavit, with numerous exhibits, including records from Colonie Manor and Daughters of Sarah, and a memorandum of law. Petitioner contends that termination of the trust was triggered by Moran's admission to Colonie Manor, which he asserts is a "residential care facility." Petitioner also describes Colonie Manor as an "adult care facility" and as an "assisted living facility." Petitioner points to McNary's testimony in support of his argument. McNary testified that Colonie Manor is not a nursing home. She was next asked if it is a residential care facility, to which she responded, "Yes. It was an adult care facility, is the term it goes by." Petitioner also argues that Moran's admission as a permanent resident of Daughters of Sarah triggers termination of the trust.
In reply, respondent contends that petitioner's brief mention of Daughters of Sarah in his memorandum of law is an insufficient response and, therefore petitioner has abandoned that argument. He further contends that Colonie Manor is not the type of facility envisioned by the trust as it is classified as a private proprietary adult home and does not provided continual medical or nursing care to its residents. Respondent further points out that the reference in the trust to the Medicaid Act demonstrates that the purpose of the contested provisions was to terminate the trust and protect her assets at the time when Moran needed the type of medical care for which Medicaid would provide assistance. Since Colonie Manor does not provide Medicaid-eligible services, and could only have been paid for by Moran's private funds, terminating the trust based on her residence there would not fulfil the trust's purpose.
The guardian ad litem's position is that the trust is not ready for termination and distribution, given Moran's return to her home. She requests that the Court grant respondent's cross motion with respect to this issue.
With respect to Colonie Manor, the evidence indicates that Moran initially intended to be a permanent resident when she moved there in June 2010. Even so, as the Court finds that, by law, Colonie Manor is not a nursing home, skilled nursing facility or a residential care facility, such admission did not trigger termination of the trust. It must be noted that the parties and witnesses have used various terms to describe Colonie Manor; however, many of these terms are defined by statute and, although they sound substantially the same, they can have very different legal meanings.
First, a private proprietary adult home, as Colonie Manor is listed on its operating certificate, is defined by Social Service Law § 2 (27) as "an adult home which is operated for compensation and profit" (see also 18 NYCRR 485.2 [i], 487.2). In turn, an "adult home" is "an adult care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care, (either directly or indirectly), and supervision to five or more adults unrelated to the operator" ( Social Services Law § 2 [25 ]; see 18 NYCRR 485.2 ).
"Assisted Living" is governed by Public Health Law article 46. " ‘Assisted living’ and ‘assisted living residence’ means an entity which provides or arranges for housing, on-site monitoring, and personal care services and/or home care services (either directly or indirectly), in a home-like setting to five or more adult residents unrelated to the assisted living provider" ( Public Health Law § 4651 [1 ] ). As is relevant here, assisted living does not include residential health care facilities or hospitals licensed under Public Health Law article 28, or adult care facilities that are not using the term assisted living (see Public Health Law § 4651 ).
The definition for a "skilled nursing facility" is not so straightforward. Insurance Law
§ 4303 directs one to 42 USC § 1395i-3, for the following definition: "an institution (or a distinct part of an institution) which [ ] is primarily engaged in providing to residents [ ] skilled nursing care and related services for residents who require medical or nursing care, or [ ] rehabilitation services for the rehabilitation of injured, disabled, or sick persons, and is not primarily for the care and treatment of mental diseases." There is evidence that a "skilled nursing facility" qualifies as a medical facility and is, therefore, akin to a hospital, nursing home, or residential health care facility (see e.g. 10 NYCRR 400.12, 415.1, 455.37 ; 18 NYCRR 505.20 ). A nursing home is defined by the Public Health Law as "a facility providing therein nursing care to sick, invalid, infirm, disabled or convalescent persons in addition to lodging and board or health-related service, or any combination of the foregoing, and in addition thereto, providing nursing care and health-related service, or either of them, to persons who are not occupants of the facility" ( Public Health Law § 2801 [2 ] ).
Finally, while the trust's term "residential care facility" is not defined by statute in a manner that is relevant here, the term "residential health care facility" is defined by Public Health Law as "a nursing home or a facility providing health related service" ( Public Health Law § 2801 [3 ] [emphasis supplied] ). Courts have recognized that, "[u]nder the pertinent statutory and regulatory schemes, there is a clear distinction between an adult care facility, which is defined, regulated and operated under the Social Services Law, and a residential health care facility, which is defined, regulated and operated under the Public Health Law" ( Macheski v. Commr. of New York State Dept. of Social Services , 243 A.D.2d 1025, 1026, 663 N.Y.S.2d 438 [3d Dept. 1997] ). Here, Colonie Manor is an adult care facility which does not, and cannot by law, provide medical services to its residents at the level of the facilities identified in the trust. Colonie Manor is not licensed as a skilled care facility, a nursing home, or a residential (health) care facility, and cannot accept Medicaid. Accordingly, Moran's residence at Colonie Manor did not effectuate a termination of the trust.
As for Daughters of Sarah, the evidence establishes that it is licensed as a "residential health care facility - skilled nursing facility" and, therefore, is the type of facility envisioned by the trust's trigger clause. Further, Moran was admitted there as a rehabilitation patient from November 2010 through February 2011. The evidence fails to establish, however, that she was admitted as a permanent or chronic care patient. Rather, Moran was there for short-term rehabilitation. The reason for placement selected on the Daughters of Sarah intake form is "Other: STR" — STR presumably referring to short-term rehabilitation, as the initial social services notes accompanying this form refer to "her placement in a skilled nursing facility for short term rehabilitation" and that it is her "goal to return to Colonie Manor." In January 2011, the family learned that Moran's health insurance would not cover further rehabilitation services at Daughters of Sarah; thus, they sought to return Moran to Colonie Manor, as was initially planned. A Transfer/Discharge Summary was prepared indicating that Moran would be discharged to Colonie Manner on January 17, 2011 due to the completion of her rehabilitation services. Colonie Manor agreed to accept Moran's return; however, it was then determined that she required a level of care greater than that which Colonie Manor could provide. Notes on a Daughters of Sarah record indicate that, around January 17, 2011, the family decided that Moran should remain at Daughters of Sarah for long-term care. Further notes from January 28, 2011, indicate that respondent nonetheless followed-up with Colonie Manor, as Moran wished to return there. At that time, it was determined that Moran could return to Colonie Manor as early as February 1, 2011. A team care meeting was held on February 8, 2011, regarding Moran's return to Colonie Manor. They discussed her return home as the second choice if Colonie Manor could not accept her. A second Transfer/Discharge Summary was later prepared, which indicated that Moran would be discharged to her home on February 18, 2011. Overall, these notes demonstrate that Moran never became a permanent patient or resident of Daughters of Sarah. Although it was briefly contemplated, the primary goal was for her to return to Colonie Manor or her home. Therefore, as Moran was not admitted to Daughters of Sarah as a permanent or chronic care patient or resident, her stay there did not trigger termination of the trust. Accordingly, it is hereby
ORDERED that petitioner's motion for summary judgment removing respondent as trustee is denied, without prejudice; and it is further
ORDERED that respondent's cross motion for summary judgment dismissing petitioner's claim that the trust has terminated is granted; and it is further
ORDERED that petitioner's cross motion for summary judgment granting petitioner's claim that the trust has terminated is denied.