The following papers were considered in this summary judgment motion:Papers NumberedAmended Notice of Motion for Summary Judgment by Petitioner,Affidavit in Support with Exhibits 1,2Affidavit in Opposition by Respondent 3DECISION In this contested miscellaneous proceeding, Carrie Gadsden (the petitioner) moves for summary judgment granting her petition to remove Robert Gadsden (the respondent) as trustee of the Effie Gadsden Living Trust (the Trust), and to appoint herself as successor trustee of said trust.BackgroundEffie Gadsden (the decedent) died at the age of 96 on June 15, 2015, survived by six adult children, including the petitioner and the respondent herein. In 2012, the decedent, as grantor, created the Trust for her benefit and, upon her death, for her children (the beneficiaries). The decedent named herself as trustee until her death and named two of her children, Mary Gadsden and the respondent, as alternate successor trustees. Mary Gadsden post-deceased on August 7, 2015, and the respondent became the successor trustee. The sole asset of the Trust is a parcel of real property located at 684 St. Marks Ave., Brooklyn 11216 (the property), which had belonged to decedent before she transferred her ownership interest to the Trust in 2012. None of the beneficiaries live at the property, a residential building generating rental income. Pursuant to the Trust, upon the decedent’s death, the principal of the Trust shall be distributed in equal shares to all the decedent’s children. To date, the respondent has not distributed the Trust property to the decedent’s children. The petitioner commenced a proceeding to compel the respondent to account, granted by order of the court dated July 6, 20161 (2016 order), wherein the respondent was directed to account within sixty days of service of the order with Notice of Entry, and to cause a citation to be issued to all interested parties “with due diligence, without undue delay.” Although an accounting was eventually submitted, it was not filed within the ordered time frame, and no citation has issued. The petitioner commenced a proceeding on July 12, 2018, to compel the distribution of the Trust property, granted by decision and order dated December 19, 20172 (2017 order), wherein the respondent was directed to distribute the principal and retained income of the Trust to the decedent’s children within thirty days. It is undisputed that the respondent has not complied with either the 2016 order or the 2017 order.On December 28, 2017, the petitioner commenced the instant proceeding, seeking an order removing the respondent as Trustee. She contends that the respondent is unfit to serve based on his failure to comply with court orders, failure to distribute estate assets in a timely manner, failure to pay real estate taxes since at least 2012, and “wasting and improperly applying the assets of the Effie Gadsden Living Trust for his own personal use.” She further contends that the respondent converted stocks which are estate assets into his own name, committed perjury in his pleadings, ignored requests for information, failed to distribute assets for over two years, treated the estate as his own personal property, and withdrew sums of cash from the Trust bank account ranging from $500 to $3,800 without explanation. Petitioner asserts that the market value of the property is $1,420,000 and must be sold in order to distribute the net proceeds equally to all the beneficiaries, as directed by the Trust.Verified objections to the instant petition were interposed by the respondent, wherein he contends that four of the beneficiaries have purportedly expressed a desire to keep the property “in the family,” that he has offered the petitioner cash payments of $5,000 or more in partial distribution, which she has rejected, and that he is ready to proceed with the transfer of title to each beneficiary as directed by the 2017 order.The petitioner moves for summary judgment to dismiss the objections and for an order removing the respondent as Trustee pursuant to SCPA 711 (3), (8) and SCPA 719 (10)3. She contends that the respondent should be removed because he has not complied with the explicit provision of the Trust to distribute the Trust property to the children, despite the lapse of three yeas since the decedent’s death. Furthermore, the petitioner asserts that the respondent is in violation of the 2016 and 2017 orders, which directed him to file a judicial accounting and cause citations to issue, and to distribute the Trust principal and retained income within 30 days. She asserts that, upon his alleged willful and repeated disobedience of the court’s orders and apparent unwillingness to effectuate the express provisions of the Trust, the respondent is unfit to carry out the duties of a trustee pursuant to SCPA 711 (3) and removal is warranted.In opposition, the respondent avers that the rental income he collected from the Trust property have been used to pay the living expenses of four out of six of the trust beneficiaries, namely, his brothers and a nephew, the sole distributee of a post-deceased beneficiary. The respondent further avers that the Trust provides that “no accounting is required.” The court notes, however, that the respondent did not interpose any objection to the prior petition to compel an accounting, and made no motion to reargue after the 2016 order directing him to account was issued. The respondent further avers that he is filing a motion to vacate the 2017 order based on “law office failure;” however, the records of this court indicate that no such motion has been filed. The respondent contends the instant motion should be denied as he “has undisputedly administered the assets of the estate fully and efficiently.”On a motion for summary judgment, the movant, the petitioner herein, has the burden of establishing a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). Once met, the burden shifts to the party opposing the motion, the respondent herein, to demonstrate the existence of material issues of fact that preclude summary judgment determination. Phillips v. Kantor & Co., 31 NY2d 307 (1972). Where there is any doubt as to the existence of material issues of fact, “or where the issue is ‘arguable,’ ‘issue-finding, rather than issue-determination, is the key to the procedure.’” Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957).SCPA 711 sets forth specific grounds which may form the basis for a court to revoke letters, including where a fiduciary has “wilfully refused or without good cause neglected to obey any lawful direction of the court contained in any decree or order or any provision of law relating to the discharge of his duty” (SCPA 711 [3]) or where a fiduciary “does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of office” (SCPA 711 [8]). The removal of a fiduciary is a matter within the discretion of the court. Stolz v. New York Cent. R.R. Co., 7 NY2d 269 (1959). It is deemed a serious remedy to be used sparingly and “only upon a clear showing of serious misconduct that endangers the safety of the estate,” Matter of Duke, 87 NY2d 465 at 473 (quotations omitted) (1996). See also Matter of Delaney, 2018 NY Slip Op 32755(U) (Sur Ct, Nassau County) (fiduciary’s failure to comply with a so-ordered stipulation demonstrated an “unequiovocal showing of serious misconduct that endangered the estate”); Estate of Bishop, 2018 NYLJ LEXIS 3859 (Sur Ct, Bronx County) (fiduciary’s failure to sell the estate property by refusing to select appraisers and brokers warranted revocation of letters); Falum v. Birnbaum, 191 AD2d 227 (1st Dept 1993) (lower court’s revocation of executor’s letters for failure to provide a her correct address as ordered by the Surrogate was upheld).Upon the papers presented, the petitioner has satisfied her burden of demonstrating entitlement to judgment as a matter of law, and the respondent has failed to raise the existence of any material issues of triable fact to preclude summary judgment. The clear and unambiguous language of the Trust requires that upon the grantor’s death, the Trustee must distribute the Trust principal and retained income to all the beneficiaries. The Trust expressly providesUpon the death of the Grantor, the principal of this trust then remaining shall be paid and distributed to the children of the Grantor, Robert Gadsden, Mary Gadsden, Carrie Beatrice Gadsden, Russell Edward Gadsden, David Ralph Gadsden, and Willie Rivers in equal shares per stirpesIt is uncontroverted that the respondent has not distributed the principal of the Trust and by his own admission, the respondent has been using Trust assets to benefit some of the beneficiaries, specifically “the rents collected from the building pay their living expenses (i.e., rent, food, telephone bill, and utilities),” while other beneficiaries, including the petitioner, have received no distribution since the decedent’s death. Notwithstanding the issuance of the 2016 order, which directed the respondent to account within sixty days and “cause a citation to be issued and complete service to be made, with due diligence, without undue delay, on all persons interested in the proceeding,” the respondent failed to timely file said petition and to date, no citation has been issued nor service completed in the proceeding. Notwithstanding the court’s issuance of the 2017 order which directed the respondent “to distribute the principal and retained income of the Trust of the decedent’s children within thirty days of receiving notice of this order,” it is undisputed that no such distribution has been made. While the respondent claims in his opposition that “[he is] ready to proceed with the transfer of title to each beneficiary based on the [2017] Order,” he nonetheless remains in clear violation of said order.The respondent’s continuing failure to distribute the Trust principal, despite the express language of the Trust and despite the order of this Court, demonstrates a want of understanding of his fiduciary responsibilities to carry forth the mandate of the Trust for the benefit of all the beneficiaries, not just those he chooses to benefit (SCPA 711 [3]), as well as a willful refusal or neglect to obey, without good cause, the lawful direction of the court (SCPA 711 [8]). These failures rise to the level of serious misconduct that endangers the estate, thereby warranting removal as fiduciary.Accordingly, the petitioner’s motion for summary judgment is granted to the extent that the objections are dismissed, Robert Gadsden is removed as Trustee of the Effie Gadsden Living Trust, and Carrie Gadsden is appointed as successor Trustee, upon her duly qualifying.Settle decree.Dated: March 20, 2019Brooklyn, New York
