Opinion
6978 SCI 2385D/13
06-26-2018
IN RE Gerald J. DUERR, etc. Sandra Branch Trust, et al., Petitioners, v. Bonnie Diaz, Respondent–Appellant, New York State Attorney General, Respondent–Respondent.
Susan R. Nudelman, Dix Hills, for appellant. Eric T. Schneiderman, Attorney General, New York (Mark H. Shawhan of counsel), for respondent.
Susan R. Nudelman, Dix Hills, for appellant.
Eric T. Schneiderman, Attorney General, New York (Mark H. Shawhan of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
Order, Surrogate's Court, New York County (Rita Mella, S.), entered on or about October 6, 2016, which granted the New York State Attorney General's motion for summary judgment to the extent of holding that a trust created by Sandra Branch on October 17, 2006 (the 2006 Trust) was neither amended nor revoked by a trust she created on November 6, 2012 (the 2012 Trust), unanimously affirmed, without costs.
Even though the order appealed from did not resolve all of the disputes among the parties, it was not an improper advisory opinion because it set parameters for the litigation (see Matter of New York City Asbestos Litig., 130 A.D.3d 489, 490, 13 N.Y.S.3d 398 [1st Dept. 2015] ).
It is undisputed that the 2012 Trust was never funded. Thus, it never became operative (see e.g. Pinckney v. City Bank Farmers Trust Co., 249 App.Div. 375, 377, 292 N.Y.S. 835 [3d Dept. 1937] [trust "becomes operative when adequately constructed"]; Hickok v. Bunting, 67 App.Div. 560, 562, 73 N.Y.S. 967 [1st Dept. 1902] ["to constitute a trust there must be a res to which it can attach"]; Estates, Powers & Trusts Law § 7–1.18 ). Since the 2012 Trust never became operative, it could not have revoked the 2006 Trust.