Smith v. Theodore P. Smith Income Only Irrevocable Trust

2023 NY Slip Op 03578

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 2023
• Docket: 187 CA 21-00874
• Status: Published

Opinion

Smith v Theodore P. Smith Income Only Irrevocable Trust (2023 NY Slip Op 03578)

Smith v Theodore P. Smith Income Only Irrevocable Trust

2023 NY Slip Op 03578

Decided on June 30, 2023

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 30, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, JJ.

187 CA 21-00874

[*1]CHRISTOPHER SMITH AND MICHAEL SMITH, AS TRUSTEES OF THE JAY AND PATRICIA SMITH IRREVOCABLE TRUST, PLAINTIFFS-RESPONDENTS,

v

THEODORE P. SMITH INCOME ONLY IRREVOCABLE TRUST, DEFENDANT-APPELLANT.

LAW OFFICES OF ANNA SMITH, HERKIMER (ANNA J. SMITH OF COUNSEL), FOR DEFENDANT-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (KEVIN G. COPE OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Herkimer County (John H. Crandall, A.J.), entered May 11, 2021. The order, among other things, granted a temporary restraining order.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Defendant appeals from an order insofar as it granted plaintiffs' request for a temporary restraining order prohibiting defendant from conducting mining operations of any kind during the pendency of the proceedings. We conclude that the appeal must be dismissed inasmuch as that order was modified by a subsequent temporary restraining order (see Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051 [4th Dept 1990]).

Entered: June 30, 2023

Ann Dillon Flynn

Clerk of the Court