ESTATE OF RONALD SINZHEIMER and MARSHA SINZHEIMER, Settlors

ESTATE OF RONALD SINZHEIMER and MARSHA SINZHEIMER, Settlors (15/1418) — Petitioners Marsha Sinzheimer and Andrew Sinzheimer have moved for leave to renew and reargue their prior motion to accept filing of their jury demand¹ and to reinstate their cause of action for conversion, based on newly discovered evidence. In a decision dated April 14, 2016, the court ruled that petitioners’ jury demand had been timely filed, but denied the request to accept the demand. The court held that there was no right to a jury trial because petitioners’ claims were based in equity. The parties have agreed to have the current motion determined on the papers submitted.

The underlying proceeding involves an inter vivos trust (Trust) created by Ronald Sinzheimer and Marsha Sinzheimer dated January 27, 1997. The dispute is between the individual co-trustee, Andrew Sinzheimer (Andrew), and the corporate co-trustee, Bank of America, N.A. (Bank), as to whether the trust instrument requires appointment of a successor corporate trustee before the Bank, as outgoing co-trustee, is required to deliver the trust assets to Andrew, as the sole remaining trustee. Petitioners in the underlying proceeding ask for delivery of the trust assets to Andrew, or, in the alternative, for damages for conversion. They also seek damages in the amount of trustee’s commissions, and $400,000 in punitive damages. The court’s prior decision determined that petitioners’ allegations did not state a claim for conversion because, among other reasons, the corporate trustee did not unequivocally refuse to deliver the assets to Andrew and never exerted control over the assets in its corporate, rather than fiduciary, capacity. Andrew states in this motion that he learned after the prior motion was submitted that the Bank had withdrawn funds from the Trust for payment of its legal fees — incurred in defense of its actions as trustee — in the total amount of $21,145.91 during the period July 1, 2015 to May 31, 2016. He argues that his discovery has brought to light “new facts” that would change the court’s prior determination, entitling him to renew his motion under CPLR 2221(e)(2).