Matter of Addesso v. Addesso

131 A.D.3d 1052, 16 N.Y.S.3d 472

Opinion

In a proceeding pursuant to CPLR article 77, inter alia, for an accounting of a certain trust account and a distribution to the petitioner in accordance with the trust agreement, the petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Loehr, J.), dated April 20, 2013, as denied the petition.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the petitioner’s contention, the Supreme Court did not err in summarily denying the petition. In a special proceeding, the court “shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised” (CPLR 409 [b]; see Matter of TNT Petroleum, Inc. v Sea Petroleum, Inc., 72 AD3d 694, 695 [2010] ; Matter of Bahar v Schwartzreich, 204 AD2d 441, 443 [1994]; cf. Matter of Whitted v City of Newburgh, 65 AD3d 1365, 1368 [2009]; Matter of 1300 Franklin Ave. Members, LLC v Board of Trustees of Inc. Vil. of Garden City, 62 AD3d 1004, 1006 [2009]). The uncontroverted evidence before the court showed that there were no assets remaining in the trust account and the petitioner previously had been provided with an accounting. In opposition, the petitioner failed to raise a triable issue of fact with respect to whether any trust assets remained or whether the accounting provided was incomplete or inaccurate (c f. Matter of Doman, 110 AD3d 1073, 1074 [2013]; Matter of Carbone, 101 AD3d 866, 868 [2012]; Matter of Crane, 100 AD3d 626, 628 [2012]; Matter of McAlpine, 85 AD3d 1185, 1186 [2011] ). Accordingly, the Supreme Court properly denied the petition.

Mastro, J.P., Leventhal, Roman and Miller, JJ., concur.

Motion by the respondents Louis Addesso and Arthur S. Yorkes, inter alia, to dismiss an appeal from an order of the Supreme Court, Rockland County, dated April 20, 2013, on the ground that it has been rendered academic. By decision and or der on motion of this Court dated July 15, 2014, that branch of the motion which was to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

Ordered that the motion is denied.

Mastro, J.P., Leventhal, Roman and Miller, JJ., concur.