Surrogate AndersonEstate of CHARLES R. DEBELLIS, Deceased (13-3439/C) — The administrator’s account was settled by a stipulation filed with the court and executed by the parties, including Natalie Lapelosa, as guardian of the property of the infant distributee, Nova Lapelosa,.Settle decree.Dated: January 10, 2019
IN THE MATTER OF THE ACCOUNTING OF LEWIS ATKINS, AS TRUSTEE OF THE “DAISY TRUST,” ESTABLISHED BY LYNN G. BOHRER, AS GRANTOR, UNDER ARTICLE FOURTH OF AN AGREEMENT DATED MARCH 4, 2004 (11-389/G) — In a contested inter vivos trust accounting, the pro se trustee moves to dismiss objections to his account on the grounds: (1) that the objections were not properly served upon him and (2) that such pleading fails to “provide any justification, evidence or law to disprove the validity of the accounting” and therefore amounts to mere harassment.Lynn G. Bohrer (“grantor”) created a revocable trust for her sole lifetime benefit. At grantor’s death in 2011, a portion ($20,000) of the trust remainder was distributed to movant as trustee of a pet trust for the lifetime care of grantor’s dog (the “Daisy Trust”). After Daisy’s death in 2013, movant filed a final account reflecting a zero balance. Decedent’s daughter, one of the two remainder beneficiaries of the trust, filed objections and opposes the instant motion.While movant does not recite the statutory authority upon which he brings this motion, it is clear from a review of his supporting affidavit that CLPR 3211 (a)(7) is the basis of his motion.First, the court must address a procedural issue raised by movant, i.e., whether he was properly served with the objections. He argues that service was improper pursuant to “court rules” since the objections were served upon him prior to the date such pleading was filed with the court. In fact, the court rules contradict his position (22 NYCRR 207.7), and the record reflects that objectant effectuated proper service of her pleading.On a motion to dismiss a pleading for failure to state a claim (CPLR 3211 [a][7]), the court must “accept the facts as alleged in the [pleading] as true, accord [objectant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 94 NY2d 83, 87-88 [1994]); Braddock v. Braddock, 60 AD3d 84, 86 [1st Dept 2009]. Further, ” [w]hether an [objectant] can ultimately establish [her] allegations is not part of the calculus in determining a motion to dismiss” (EBC v. Goldman Sachs & Co., 5 NY3d 11,19 [2005]).In her pleading, objectant takes issue with payments made directly to the trustee which she alleges have not been adequately detailed or documented, and with the payment of allegedly excessive legal fees. Such a pleading thus meets the statutory standards of sufficiency and clarity. Furthermore, since at the pleading stage the ultimate merits of the pleader’s position are not before the court, there is no basis to accept movant’s contention that the objections are in fact frivolous and filed only to harass him. Accordingly, the motion is denied.This constitutes the decision and order of the court.Clerk to notify the parties.Dated: January 11, 2019
