Surrogate Czygier, Jr. IN THE MATTER OF THE APPLICATION OF CAMILLE L. BARONE AS GUARDIAN OF THE PROPERTY OF ELIZABETH A. BARONE FOR PERMISSION TO FUND A FIRST PARTY SPECIAL NEEDS TRUST. (37 G 08/C) — In this miscellaneous proceeding, petitioner, Camille L. Barone (“Barone”), as guardian of the property of Elizabeth A. Barone (“Elizabeth”), requests an order authorizing petitioner to create and fund the “Elizabeth A. Barone Special Needs Trust” (the “Trust”) with “assets held in the settlement proceeds from the Suffolk County Supreme Court action under Index #10954-2012 of approximately $296,460.00.” Jurisdiction has been obtained over all necessary parties to the proceeding including Elizabeth, a developmentally disabled person for whom a guardian ad litem has been appointed. The guardian ad litem has filed his report recommending that petitioner be authorized to create the proposed supplemental needs trust, after certain modifications to the Trust, but that the request to fund the Trust be denied. The record reflects that the Suffolk County Department of Social Services and the Office of the Attorney General of the State of New York have been served with citation in this proceeding. No one has appeared in opposition to the requested relief. The record reflects that petitioner, Camille L. Barone, was appointed co-guardian of the person of Elizabeth by decree of this court dated June 17, 2008, along with Elizabeth’s father, Vincent Barone. The co-guardians subsequently requested that the letters of co-guardianship of the person issued to Mr. Barone be revoked. By decision and decree each dated June 26, 2014, Camille L. Barone was appointed sole guardian of the person of Elizabeth. Camille was appointed guardian of the property of Elizabeth by decree dated December 5, 2016 and letters of guardianship of the person and letters of guardianship of the property were separately issued to petitioner on those dates, respectively. An unexecuted copy of the supplemental needs trust has been submitted by petitioner. In addition, and as noted above, petitioner also requests an order authorizing the funding of the Trust with Elizabeth’s assets. In a prior petition, Barone requested similar relief. In that proceeding, Barone requested permission to deposit the settlement proceeds in a supplemental needs trust she had already established. That application was denied, because many terms of the trust, which was irrevocable, were in contravention of the court’s policies. All of the deficiencies of the trust were enumerated in this court’s decision and order dated June 1, 2017. Unfortunately, Barone has not incorporated all of the required changes into the Trust. The prior trust dispensed with the posting of a bond. As the guardian ad litem correctly points out, the June 1, 2017 decision and order provided the following language for a bond: “The Trustee shall be required to execute and file a bond at such time as the corpus of the Trust exceeds thirty thousand dollars (($30,000.00) in an amount at least equal the trust corpus.” Despite this, Barone chose to use language that would require a bond equal only to the amount with which the Trust is initially funded. Section 6.04 of the trust must be amended, as directed in the prior decision and order, to provide for the bond as above. In addition, and as also noted by the guardian ad litem, Barone has not provided the court with a copy of the decree or order approving the settlement of the personal injury action with which the Trust will be funded. The prior decision and order stated: Although petitioner states that the funds are the proceeds from a personal injury action stemming from an automobile accident, which was resolved in Supreme Court, petitioner has not provided the court with a copy of the decree or order in that matter. As such orders often contain limitations on the transfer or use of the settlement proceeds when an incapacitated plaintiff is involved, petitioner must supply the court with a copy of the decree or order. Consequently, as no copy of the order or decree has been provided, petitioner’s request for authorization to fund the Trust with Elizabeth’s funds is denied. Finally, the guardian ad litem recommends that Section 5.04 of the proposed Trust be removed in its entirety because the court does not require the filing of an annual account. This Section should be removed for this and an additional reason. As stated in this court’s prior Decision and order, requiring the trustee to account to Elizabeth, who is mentally disabled, and “her legal representative” (the petitioner / trustee) is illusory. Consequently, and as recommended by the guardian ad litem, Section 5.04 should be removed in its entirety. Accordingly, it is ORDERED, that petitioner’s request for an order authorizing petitioner to transfer Elizabeth’s funds to the “Elizabeth A. Barone Special Needs Trust” is hereby denied; and it is further ORDERED, that petitioner be and hereby is authorized to establish a supplemental needs trust for the benefit of Elizabeth A. Barone in compliance with this decision and order; and it is further ORDERED, that the proposed trustee is directed to file her oath and designation, as trustee, as well as a bond in the amount of $300,000.00; and it is further ORDERED, that the guardian ad litem will be awarded an allowance for services rendered his ward by separate decision after petitioner has complied with the terms of this decision and order and the guardian ad litem has submitted his supplemental report; and it is further ORDERED, the petitioner is authorized to pay the fee awarded the guardian ad litem for his services in this proceeding from the assets of Elizabeth, after the court fixes same; and it is further ORDERED, that upon the filing of a bond in the amount of $300,000.00, the petitioner is authorized to pay the cost of the bond; and it is further ORDERED, that the petitioner file an original, executed trust indenture within thirty days of the date hereof; and it is further ORDERED, that within sixty (60) days of this decision and order petitioner shall file a copy of the decree, order, or other document evidencing the final settlement of the personal injury matter; and it is further ORDERED, that this matter is hereby scheduled for a conference on January 30, 2018, at 9:30 a.m. at the Suffolk County Surrogate’s Court, County Center, 320 Center Drive, Riverhead, New York, to confirm compliance with this decision and order.
ESTATE OF ABIGAIL I. DUTTON, Deceased. (15-1402/C) — The court has before it a motion in which movant, Edward J. Dutton (“Edward” or “movant”), decedent’s son and the objectant in the underlying accounting proceeding, seeks to compel discovery pursuant to CPLR §§3214 and 3216. In response thereto, petitioner in the accounting proceeding, Miles Dutton (“Miles” or “respondent”), also decedent’s son and one of decedent’s five children, filed a cross-motion in which he requests that Edward’s objections in the accounting proceeding be dismissed, and in which he only obliquely responds to some of Edward’s discovery demands. For the reasons stated herein, Edward’s motion to compel discovery is granted in part and denied in part and Miles’ cross-motion for summary judgment is denied. In making these determinations, the court has considered the “Affirmation [sic] in Support of Motion” of Edward; the “Affirmation” in support of cross-motion for summary judgment of Jaren M. Fernan, Esq., one of Miles’ attorneys; the “Affidavit” of Justin N. Lite, Esq., also an attorney for Miles; and the “Affidavit in Opposition to Respondent’s Cross-Motion for Relief Under CPLR 3212″ of Edward. Background Decedent died on April 10, 2015 leaving a last will and testament dated April 18, 1983 and a codicil dated June 9, 198 9 which were admitted to probate by decree of this court dated November 23, 2015 (collectively, the “will”). Letters testamentary issued to Miles on November 25, 2015. Miles filed his account on July 12, 2016; “Waiver of Citation and Consent in Accounting” forms from decedent’s other three children were filed on that date. Pleadings In Edward’s motion, rather than address or enumerate discovery demands he made which have not been answered or otherwise addressed by Miles, Edward attempts, in part, to argue the merits of his position in the underlying accounting proceeding (see, Edward Aff.
