Connery v. Sultan

129 A.D.3d 455, 9 N.Y.S.3d 576

Opinion

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 28, 2014, which denied defendant’s motion seeking vacatur of a judgment (same court and Justice), entered December 3, 2012, pursuant to CPLR 5015 (a) (3) and (4); dismissal of the complaint pursuant to CPLR 3211 (a) (1), (2), (3) and (7); leave to amend the answer pursuant to CPLR 3025 (b) to assert an affirmative defense of lack of standing or capacity to sue; and sanctions pursuant to CPLR 8303-a and 22 NYCRR 130-1.1 (a), unanimously affirmed, without costs.

Contrary to defendant’s argument, a trustee may maintain an action against another “as he could maintain if he held the trust property free of trust” (Restatement [Second] of Trusts § 280). “It is unnecessary for the trustee in the pleadings or other proceedings to describe himself as trustee. He can proceed in the action as though he were the owner of the claim which he is enforcing. If he does describe himself as trustee the description is treated as [mere] surplusage” (id., Comment h; see Gerel Corp. v Prime Eastside Holdings, LLC, 12 AD3d 86, 95 n 3 [1st Dept 2004]; Haag v Turney, 240 App Div 149, 150-151 [1st Dept 1934]).

Concur — Tom, J.P., Sweeny, Moskowitz, DeGrasse and Richter, JJ.