Yonke v D'Angelo 2024 NY Slip Op 32349(U) July 10, 2024 Supreme Court, New York County Docket Number: Index No.: 150398/2015 Judge: James E. d'Auguste Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. James E. d’Auguste PART 55 Justice ---------------------------------------------------------------------------------X INDEX NO. 150398/2015 KRISTINA HAMNER YONKE, MOTION DATE 09/22/2018 Plaintiff, MOTION SEQ. NO. 002 -v- for a Compulsory Accounting by George D’Angelo (deceased), Post-Deceased Trustee under Deed of Trust created by Ingrid Yonke (deceased) dated 10/1/2010, DECISION + ORDER ON by David S. D’Angelo and Christopher D’Angelo as MOTION Fiduciaries of George D’Angelo’s Estate, Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 78, 79, 80, 81, 82, 85 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) .
This petition concerns the administration of the Ingrid Yonke Trust (the Trust)
by respondent/trustee George A. D’Angelo (George) in which petitioner Kristina Hamner
Yonke (petitioner or Kristina) seeks an accounting of the Trust.
Respondents David D’Angelo and Christopher D’Angelo, as fiduciaries of the Estate of
George D’Angelo and successor trustees of the Trust, move, pursuant to CPLR 3212, for
summary judgment dismissing the petition.
Petitioner cross-moves, pursuant to New York Estates, Powers and Trusts Law (EPTL)
§ 7-2.6 (a) (2), for an order removing respondent David D’Angelo as successor trustee of the
Trust.
For the reasons set forth below, respondents’ motion for summary judgment is granted,
and petitioner’s cross-motion is denied.
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 1 of 21 Motion No. 002
1 of 21 [* 1] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
BACKGROUND
The Trust Instrument
By Trust Instrument dated October 1, 2010, Ingrid Yonke (the Decedent) created the
Trust (see Trust Instrument [NYSCEF Doc No. 37]). The Decedent (the Trust’s grantor): (1)
provided that she would be the Trust’s only beneficiary during her lifetime and (2) directed that,
after her death, the Trust would continue to exist for the benefit of her daughter, Kristina (the
Trust’s remainder beneficiary).
Pursuant to the Trust Instrument, the Decedent reserved the right to revoke the Trust
Instrument (see id., ¶ 8 [“This Trust is revocable”]). The Trust Instrument further provides that,
during the Decedent’s lifetime, the Trustee of the Trust shall pay to the Decedent “the net
income” derived from the Trust (see id., ¶ 1 [a]). Thereafter, the Trust Instrument authorizes
the Trustee of the Trust to pay or apply so much of the Trust’s principal as the Trustee shall
determine is necessary for the Decedent’s “medical care, maintenance, support and general
welfare” (see id., ¶ 2).
The Trust Instrument does not provide for the Decedent’s daughter, Kristina, to benefit
from the Trust during the Decedent’s lifetime (see id., ¶ 1 [b]). Instead, the Trust Instrument
provides that, if Decedent had not theretofore revoked or altered the Trust, upon the Decedent’s
death, the Trustee of the Trust shall distribute to Kristina the Trust’s “net income,” and
authorizes the Trustee to invade the Trust’s principal for Kristina’s “health, support,
maintenance and education” (see id.). The Trust Instrument further states that: “[Kristina] may
[by] written request to the trustee withdraw from the principal of the trust the following: up to
one-third (1/3) thereof at any time after such child’s reaching thirty-five (35) years of age [or
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 2 of 21 Motion No. 002
2 of 21 [* 2] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
after my death if such child has reached age thirty-five (35)] and the entire balance thereof at
any time after reaching forty (40) years of age” (see id.).
The Decedent appointed George to serve as trustee of the Trust (see generally Trust
Instrument). She also nominated George’s sons, David and Christopher, to serve as successor
trustees in the event that George was not able to administer the Trust (see id., ¶ 7).
George’s Administration Of The Trust During The Decedent’s Lifetime
Following his appointment as Trustee of the Trust, George administered the Trust for
the Decedent’s benefit (see Trust Financial Reports, dated December 31, 2011 and August 7,
2012 [NYSCEF Doc Nos. 39 and 40). During the Decedent’s lifetime, George made more than
$5,000,000 in Trust distributions to, or for the benefit of, the Decedent (see id., schedule D).
George also provided the Decedent with annual financial reports for the Trust and statements
for its investment accounts (see George D’Angelo dep [NYSCEF Doc No. 38], at 70-71).
By Approval of Administration of Trust, dated January 1, 2012 (the Approval
[NYSCEF Doc No. 41), the Decedent approved of George’s administration of the Trust for the
period October 1, 2010 to January 1, 2012, expressly releasing – and indemnifying – him from
liability for his stewardship of the Trust during that period. The Approval, duly executed by
the Decedent, states as follows:
“1. George ... is a trustee under certain trusts created under the Trust Agreement of October 1, 2010 (the ‘Trust’).
2. I have examined the monthly and annual statements, checks, check register, and other records, of or relating to the Trust, including without limitation those of or relating to the accounts of the Trust at UBS Financial Services, Inc. through the present; I find the statements, checks, check registers, and other records, to be true and correct in all particulars and that my assets and the assets of the Trust have been fully accounted for; I acknowledge, approve and affirm that all transactions, dispositions, withdrawals, distributions and payments made by or at the direction of [George] in, among, to and/or from each account or asset have
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 3 of 21 Motion No. 002
3 of 21 [* 3] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
been authorized and approved by me and are hereby ratified, affirmed and approved as though done by me; and I accept and approve the aforesaid statements with the same force and effect as though they had been complied into a formal statement of account duly filed with, audited, adjudicated and confirmed absolutely by the court having jurisdiction over the trust.
3. I waive and audit the administration of the trust through the present by the court having jurisdiction over the trust.
4. I waive the preparation of a full accounting of the trust, all assets, principal and income through the present having been fully accounted for and having been paid for ... the person entitled thereto or held, as shown as the aforesaid statements or in the aforesaid documents and other records, in continued trust, as the case may be.
5. I hereby absolutely and irrevocably REMISE, RELEASE, QUITCLAIM and FOREVER DISCHARGE [George], as well as heirs, successors, executors, administrators and assigns, of and from any and all actions, causes of actions, payments, accounts, reckonings, liabilities, claims and demands whatsoever, in law or equity, whether known or unknown or heretofore capable or incapable of being discovered, which I ever had, now have or which I or my personal representatives, heirs, successor trustees, successor beneficiaries, successor or assigns, or any of them, hereafter can, shall or may have, for or by reason of any cause, matter or things whatsoever from the beginning of the world to the date hereof, including without limitations, that which relates in [any way to the] trust.
6. I hereby agree to indemnify and hold harmless [George], as well as his heirs, successors, executors, administrators and assigns, from and against any and all claims, loss, liability or damage (whether or not related to negligence or gross negligence of [George] which [George] may suffer or to which [George] may be subject by reason of the administration of the trust, or of any act or omission through the present in connection therewith or related thereto, or the approval and settlement of the foregoing based on the statements rather than an[] accounting without the approval of the court having jurisdiction over the trust.
7. I acknowledge that I have been advised that I am entitled to and may obtain the advise (sic) of independence legal and accounting counsel in connection with the trust, and in connection herewith, and that if I wish I may have a formal accounting of the trust, and an audit therefore by the court, and that I have determined that such independent counsel, formal accounting and audit are not required and that I wish to proceed as set forth in this approval and release”
(see id.).
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 4 of 21 Motion No. 002
4 of 21 [* 4] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
The Decedent’s Death And The Resulting Litigation
The Decedent died on August 7, 2012 (see petition [NYSCEF Doc No. 1],¶ 17). She
was survived by Kristina, her only child, who has entered into multiple litigated matters against
George and David. These proceedings include the present proceeding and a probate proceeding
in which she has contested the Decedent’s Last Will and Testament in the Surrogate’s Court,
New York County.
By petition dated December 19, 2014, petitioner commenced the present proceeding,
seeking to compel George to account as trustee of the Trust (see Petition, ¶ 21). Pursuant to
Surrogate’s Court Procedure Act (SCPA) § 707 (1) (e), petitioner also alleged that George was
ineligible to serve as trustee of the Trust, claiming that George and/or his Pennsylvania law
firm received several hundreds of thousands of dollars in legal fees from the Decedent and/or
her Trust during the period 2011 to 2012 (see id., ¶¶ 23-30).
George filed an Answer on April 1, 2015 in which he: (1) asserted that petitioner lacks
standing to compel him to account as trustee of the Trust for the period before the Decedent’s
death on August 7, 2012, reasoning that the Trust Instrument was revocable during that period
and, thus, only the Decedent possessed standing to compel an accounting of the Trust for the
period before her death (see Answer [NYSCEF Doc No. 8, ¶ 31); (2) the Decedent gave George
a release for his stewardship of the Trust for the period up and to including January 1, 2012 (see
id., ¶ 36) and (3) the Decedent ratified George’s administration of the Trust in the years leading
up to her death (see id., ¶ 37). With respect to petitioner’s request for his removal as Trustee,
George denied her allegations (see id., ¶¶ 22-30).
After the Decedent’s death, George administered the Trust for Kristina’s benefit.
George monitored the Trust’s accounts, consulted with investment advisors, and retained
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 5 of 21 Motion No. 002
5 of 21 [* 5] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
accountants to facilitate his administration of the Trust. George also rendered an accounting
(the Accounting) of his tenure as Trustee of the Trust, for the period of August 7, 2012, to
January 31, 2015 (the period after the Decedent’s death, during which Kristina had a vested
interest in the Trust), and petitioned this court to have it judicially settled (see July 8, 2015
petition and Accounting [NYSCEF Doc No. 45]). Kristina has filed Objections to the
Accounting (see November 2, 2015, Objections [NYSCEF Doc No. 46).
George and Kristina have engaged in extensive discovery, including the exchange of
documents and party and non-party depositions. During one of the depositions, Bruce DiCicco,
Esq., the Decedent’s one-time attorney, who has also represented Kristina, testified that the
Decedent discussed the issue of the legal fees that George and/or his law farm charged her, and
yet she did not pursue any disputes as to those fees (see DiCicco dep [NYSCEF Doc No. 47],
at 44-46). Mr. DiCicco further testified that the Decedent did not show concern as to, or
question, the monetary value of the services that George and/or his law firm received from her
during her lifetime (see id. at 102-103).
George died on April 16, 2018. Respondents then moved to substitute into this
proceeding on behalf of George’s estate. By order dated September 5, 2018, the court granted
respondents’ substitution motion (see Order [NYSCEF Doc No. 49]).
DISCUSSION
Respondents’ Motion for Summary Judgment
Standing is a threshold constitutional issue in litigation (see Matter of Graziano v
County of Albany, 3 NY3d 475, 479 [2004]), as without standing, “a party lacks authority to
sue” (see id.). “The doctrine of standing is an element of the larger question of justiciability
and is designed to ensure that a party seeking relief has a sufficiently cognizable stake in the
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 6 of 21 Motion No. 002
6 of 21 [* 6] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
outcome so as to present a court with a dispute that is capable of judicial resolution” (Security
Pac. Natl. Bank v Evans, 31 AD3d 278, 279 [1st Dept 2006], citing Community Bd. 7 of
Borough of Manhattan v Schaffer, 84 NY2d 148, 154–155 [1994]). The most critical
requirement of standing is the presence of “injury in fact—an actual legal stake in the matter
being adjudicated” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]).
A revocable trust instrument, like the Trust Instrument at issue here, only becomes
“irrevocable” upon the grantor’s death (see Matter of Malasky, 290 AD2d 631, 632 [3d Dept
2002]). Until the grantor’s death, a revocable trust is an “ambulatory instrument,” and the
grantor retains the right to revoke, or amend, the instrument and/or the rights of the beneficiaries
who take under it (see Matter of Tisdale, 171 Misc 2d 716, 719-20 [Sur Ct, NY County 1997]).
“The trustee of a revocable trust (if not the [grantor]) simply acts at the behest of the [grantor]”
(id. at 720). “If the [grantor] becomes dissatisfied with the trustee or with the terms of the trust,
he or she simply amends the trust to suit his or her desires” (id.). The grantor need not seek the
approval of a court, or another party, in order to revoke or amend a revocable trust instrument
(see id.), and the remainder beneficiaries of a revocable trust have no right to take action relative
to the trust before the grantor dies (see Malasky, 290 AD2d at 632).
In light of those well-settled principles, it is clear that a remainder beneficiary of a
revocable trust lacks standing to compel the trustee of the revocable trust to account for the
period before the grantor’s death (see Matter of Compulsory Accounting of Piecuch Family
Trust, 2006 WL 6981703, 2006 NY Misc Lexis 6316 [Sur Ct, Suffolk County 2006]). The
underlying rationale is that, during the grantor’s lifetime, the grantor retains the right to revoke
or amend the governing trust instrument, and the remainder beneficiaries’ interests in the trust,
thus, vest only upon the grantor’s death (see Matter of Central Hanover Bank & Trust Co.
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 7 of 21 Motion No. 002
7 of 21 [* 7] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
(Momand), 176 Misc 183, 186 [Sup Ct, NY County 1941], affd 263 App Div 801 [1st Dept
1941], affd 288 NY 608 [1942] [“The remaindermen have no interest in the income during the
life of the trustor and they therefore have no right to an account thereof; there can be nothing
coming to them; their only interest is as remainderman in the corpus of the property and thus
are only concerned to that extent. I am therefore of the opinion that as they have only a
remainder interest in the trust estate they are not entitled to information regarding the
disposition of the trust estate or trust income during the existence of the preceding life estate or
any right to call upon the trustee for an accounting and hence have no right to file objection
thereto”]).
Accordingly, the remainder beneficiary of a revocable trust lacks the authority to sue
the trustee of the revocable trust for an accounting of the trustee’s administration thereof during
the lifetime of the trust’s grantor (see Matter of Kalik, 117 AD3d 590, 590-91 [1st Dept 2014]
[“Plaintiff lacks standing to object to the part of the accounting that covers the period when his
father, the grantor, was alive, i.e. the period when the trust was revocable”]; Malasky, 290 AD2d
at 632 [explaining that, because “there is no construction of the trust which gives respondents
any interest until decedent’s death, when the trust became irrevocable,” “(w)e conclude,
therefore, that respondents, having no pecuniary interest in the revocable trust until decedent’s
death, lack standing to object to the account for the first accounting period (prior to decedent’s
death)”]; Matter of Miness v Deegan, 39 Misc 3d 1226[A], 2013 NY Slip Op 50741[U], * 2
[Sur Ct, Nassau County 2013], citing Matter of Piecuch Family Trust, 2006 WL 6891703, 2006
NY Misc Lexis 6316 [“It has consistently been held that (w)here a party has no pecuniary
interest in a revocable trust until the settlor’s death, such party would have no right to an
accounting thereof”]; Matter of Sofi, 36 Misc 3d 1223[A], 2012 NY Slip Op 51458[U], * 5 [Sur
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 8 of 21 Motion No. 002
8 of 21 [* 8] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
Ct, Bronx County 2012] [“As a general rule where the settlor of a lifetime revocable trust is the
only person who has an interest in the income and principal of the trust during his or her life,
the remaindermen have no interest in the trust until the settlor dies and the trust becomes
irrevocable; consequently, the remaindermen lack standing to object to any trust transaction
that occurred during the settlor’s life”]).
Here, in the Trust Instrument, the Decedent (the Trust’s grantor) expressly reserved the
right to revoke the Trust Instrument during her lifetime, such that Kristina’s interest in the Trust
(as the remainder beneficiary thereof) only vested at the Decedent’s death (see Trust Instrument,
¶ 8). Indeed, Kristina explicitly swore in the Petition that: (1) “During [the Decedent’s] life,
[the Decedent] was the sole income and principal beneficiary of the Trust”; and (2) “Upon [the
Decedent’s] death, the sole beneficiary of the Trust is Kristina” (see Petition, ¶¶ 16, 18).
Accordingly, respondents have established, as a matter of law, that petitioner lacks
standing, as a remainder beneficiary of the Trust who did not have a beneficial interest therein
before the Decedent’s passing, to compel an accounting of George’s administration of the Trust
for the period occurring during the Decedent’s lifetime.
This conclusion is buttressed by the fact that Decedent (the only person who had
standing to object to George’s conduct as Trustee of the Trust during her lifetime) expressly
approved of George’s administration of the Trust during the period October 1, 2010 to January
1, 2012, and granted him a release for that period of the Trust’s administration (see Approval).
The Decedent did so after: (1) examining “the monthly and annual statements, checks, check
register, and other records, of or relating to the Trust, including without limitation those of or
relating to the accounts of the Trust” for the period October 1, 2010 to January 1, 2012; (2)
finding “the statements, checks, check registers, and other records, to be true and correct in all
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 9 of 21 Motion No. 002
9 of 21 [* 9] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
particulars and that ... the assets of the Trust have been fully accounted for”; and (c) approving
of “all transactions, dispositions, withdrawals, distributions and payments made by or at the
direction of [George] ... have been authorized and approved by” the Decedent (see id., ¶ 2).
Indeed, New York courts have recognized that a fiduciary may avoid having to render a formal
judicial accounting of a trust when the fiduciary obtains “‘releases from interested parties
regarding the handling of the ... trust’” (see Matter of Spacek, 155 AD3d 747, 748 [2d Dept
2017] [citation omitted]).
Therefore, respondents’ motion for summary judgment dismissing Kristina’s Petition to
compel George (and/or respondents, as fiduciaries of his estate) to account for his
administration of the Trust from the Trust’s October 1, 2010, creation to the Decedent’s August
7, 2012, death is granted. Summary judgment is also granted dismissing that branch of the
petition requesting that George account for the Trust’s administration during the period after
the Decedent’s death, as George already has rendered his Accounting for that period. Kristina’s
request for that relief is, therefore, moot.
In opposition to the motion, petitioner fails to raise any triable issues of fact. Petitioner
effectively contends that, regardless of whether she had a beneficial interest in the Trust during
the Decedent’s lifetime, she is entitled to an accounting of the Trust transactions that occurred
before the Decedent died (see affirmation of Connor Dolgon, Esq. [NYSCEF Doc No. 55], ¶¶
37-53). However, petitioner’s argument completely lacks merit, because, as previously
discussed, under New York law, a remainder beneficiary of a revocable lifetime trust has
standing to compel an accounting of a trustee’s administration of the revocable trust only for
the period commencing after the grantor’s death, when the governing trust instrument becomes
irrevocable, and the remainder beneficiary’s interest therein vests.
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 10 of 21 Motion No. 002
10 of 21 [* 10] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
To the extent that Kristina relies upon Surrogates Court Procedure Act (SCPA) §§ 2205
and 103 (39) to establish that (1) a “person interested” in a trust may compel an accounting
thereof, and (2) she is a “person interested” in the Trust (see Dolgon affirmation, ¶¶ 37-39),
Kristina’s reliance on those statutes is misplaced. New York law makes clear that, for the
purpose of determining the individuals who have standing to compel the trustee of a revocable
lifetime trust to account for the trustee’s stewardship thereof, SCPA § 2205 does not confer
standing upon the remainder beneficiaries of a revocable lifetime trust with respect to the period
before the grantor dies (see Malasky, 290 AD2d at 632; Matter of Andrews v Trustco Bank,
Natl. Assn., 289 AD2d 910, 912 [3d Dept 2001] [opining that, “inasmuch as the grantor (of a
revocable lifetime trust) was also the sole beneficiary during his lifetime, the trust agreement
made the trustee accountable only to the grantor until his death”]; see also Margaret Valentine
Turano, Practice Commentaries to SCPA § 2205 [McKinney’s 2013] [citing Malasky, with
approval, for the proposition that a “contingent beneficiary under (a) revocable trust had no
interest and hence no standing (to compel an accounting) under” SCPA § 2205]).
Although petitioner also claims that Malasky, Kalik, and their progeny do not apply
because the grantors in those cases also served as trustees of the revocable lifetime trusts that
they created (see Dolgon affirmation, ¶¶ 41-42), the Appellate Division has rejected precisely
that argument in other cases. In Andrews (289 AD2d 910), the grantor created a revocable
lifetime trust - of which the grantor was the sole beneficiary during his life - and appointed
Bank of New York to serve as trustee of the trust. Thereafter, the grantor executed an
agreement, in which he replaced Bank of New York as trustee of the trust, and dispensed with
the requirement that Bank of New York account for its administration of the trust. After the
grantor’s death, the remainder beneficiaries sought to compel Bank of New York to account for
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 11 of 21 Motion No. 002
11 of 21 [* 11] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
its stewardship of the trust during the period before the grantor’s death (see id.). Both the
Surrogate’s Court and the Appellate Division found that the remainder beneficiaries of the
grantor’s revocable lifetime trust lacked standing to compel Bank of New York to account for
the period preceding the grantor’s death. The courts reasoned that, because “the grantor was ...
the sole beneficiary [of the revocable lifetime trust] during his lifetime, the trust agreement
made the trustee accountable only to the grantor until his death” (id. at 912).
Accordingly, it makes no difference whether the Decedent acted as a Trustee of the
Trust, or appointed only George to act in that fiduciary post – the result is the same: a remainder
beneficiary of a revocable lifetime trust lacks standing to compel the trustee thereof to account
for his or her administration of the trust for the period prior to the grantor’s death (see id.).
Petitioner also contends that an exception to the general rule articulated above (that
remainder beneficiaries of a revocable lifetime trust lack standing to compel the trustee of a
revocable lifetime trust to account for the period during the grantor’s life) exists (see Dolgon
affirmation, ¶¶ 45-48). Relying upon the Florida case of Siegel v Novack (920 So 2d 89 [Fla
Dist Ct App 2006], and two Surrogate’s Court cases that cite to it, Matter of Shay (Edna Block
Revocable Trust) (33 Misc 3d 1230[A], 2011 NY Slip Op 52165[U] [Sur Ct, Bronx County
2011]) and Matter of Sofi (36 Misc3d 1223[A], 2012 NY Slip Op 514581[U]), petitioner argues
that “[o]ne possible exception to [the general] rule is where a person with a remainder interest
establishes that a trustee other than the [grantor] made an improper withdrawal from the trust
without the [grantor’s] approval or ratification” (Dolgon affirmation, ¶ 46). According to
petitioner, the legal fees taken by George and his law firm “were improper as a matter of law,”
and thus fall within this exception (see id., ¶ 49).
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 12 of 21 Motion No. 002
12 of 21 [* 12] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
This argument lacks merit. Siegel, Shay, and Sofi all predate the First Department’s
2014 ruling in Kalik, in which the Court reiterated that, under New York law, remainder
beneficiaries of a revocable lifetime trust lack standing to pursue claims concerning the
administration of the trust for the period before the grantor’s death (see Kalik, 117 AD3d at
590-91). Importantly, since the First Department rendered its ruling in Kalik, other courts in
this Judicial Department have rejected parties’ reliance upon Siegel (see Matter of Fergang,
2015 WL 1003580, * 2 [Sup Ct, NY County 2015]).
Moreover, even if such exception existed, such legal fees are insufficient to raise an
issue of fact concerning petitioner’s standing to compel an accounting of George’s
administration of the Trust, during the Decedent’s lifetime, because the evidentiary record
before the court establishes that the Decedent was aware of, and ratified, the payment of such
fees. First, the Decedent, the Trust’s grantor, executed the Approval in which she
acknowledged that she examined all of the financial documents pertaining to the Trust, found
them to be “true and correct,” approved all transactions made by George, released George for
his administration of the Trust, and agreed to indemnify him for “any and all claims, loss,
liability or damage ... which [George] may suffer ... by reason of the administration of the”
Trust (see generally the Approval). The Decedent did so after being advised of the right to
consult with independent counsel (see id.). Although petitioner also alleges that the Approval
is invalid because it was not signed by a witness or a notary (see Dolgon affirmation, ¶¶ 61-63),
New York law does not require that an instrument like the Approval be signed by a witness or
a notary in order to be enforceable (see Matter of O’Connor, NYLJ, Sept. 30, 1994, at 29 [Sur
Ct, Bronx County]).
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 13 of 21 Motion No. 002
13 of 21 [* 13] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
Second, the Decedent did so by her conduct, as evidenced by Kristina’s deposition
testimony that: (1) the Decedent was aware of the legal fees that George charged her; (2)
Kristina recommended to the Decedent that she replace George as her attorney; and (3) despite
Kristina’s suggestion, the Decedent did not replace George as her attorney (Kristina Yonke dep
[NYSCEF Doc No. 69], at 77-94).
Although petitioner also references the difficulties that the Decedent had with alcohol,
the evidentiary record before the court establishes that the Decedent was a well-educated,
highly-sophisticated person, who managed her own daily affairs, administered her father’s
estate, actively participated in litigation, and gave regular instructions to George as to how to
handle her Trust’s affairs (see affidavit of David D’Angelo [NYSCEF Doc No. 70], ¶ 2).
Indeed, petitioner admits that the Decedent “was a very intelligent college graduate, [was] an
avid reader and had a great eye for detail” (see January 29, 2016, affidavit of Kristina Yonke
[NYSCEF Doc No. 71]). In addition, the mere fact that the Decedent may have been an
alcoholic is insufficient to raise an issue of fact calling into question the validity of the
Approval, or any other legal transaction into which the Decedent entered (see Matter of
Redington, NYLJ, July 18, 2014, at 24 [Sur Ct, NY County]; Matter of MacGuigan, NYLJ Apr.
20, 2015, at 26 [Sur Ct, NY County]). In order for the Decedent’s alcohol addiction to be
relevant to any of the transactions that are before the court on respondents’ motion, the
evidentiary record must show that the Decedent’s judgment was impaired at the time that the
transactions occurred (see id.). The record is devoid of any such evidence.
Accordingly, even if the Siegel exception existed, because the Decedent expressly and
implicitly ratified the payment of the legal fees about which petitioner now complains, such
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 14 of 21 Motion No. 002
14 of 21 [* 14] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
fees are insufficient to raise an issue of fact necessitating a trial concerning petitioner’s standing
to compel an accounting of George’s administration of the Trust during the Decedent’s lifetime.
Petitioner also asks this court to sua sponte order an accounting of George’s
administration of the Trust for the period prior to the Decedent’s death (see Dolgon affirmation,
¶¶ 69-76). This court declines to do so. Because the Decedent retained the right to revoke or
amend the Trust Instrument until her death, and Kristina, as a remainder beneficiary of the
Trust, did not have a beneficial interest in the Trust until after the Decedent passed, Kristina
would lack standing to object to any accounting that the court were to sua sponte direct
respondents to render concerning George’s administration of the Trust prior to the Decedent’s
death (see Kalik, 117 AD3d at 590-91).
The court also grants that portion of the summary judgment motion dismissing the
petition to the extent that it seeks George’s removal as trustee of the Trust, given that George
is now deceased. “‘It is a fundamental principle of our jurisprudence that the power of a court
to declare the law only arises out of, and is limited to, determining the rights of persons which
are actually controverted in a particular case pending before [a] tribunal’” (see Funderburke v
New York St. Dept of Civ. Serv., 49 AD3d 809, 810-11 [2d Dept 2008], quoting Matter of Hearst
Corp. v Clyne, 50 NY2d 707, 713 [1980]). “Courts are prohibited from rendering advisory
opinions and ‘[a matter] will be considered moot unless the rights of the parties will be directly
affected by the determination of the [matter] and the interest of the parties is an immediate
consequence of the judgment’” (see id.; Matter of Yuri M. (Karpati), 107 AD3d 999, 1000 [2d
Dept 2013]). Thus, where the circumstances giving rise to a matter have changed, such that the
matter raises only an academic issue, the matter must be dismissed as moot (see Funderburke,
49 AD3d at 811).
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 15 of 21 Motion No. 002
15 of 21 [* 15] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
Here, in light of George’s recent passing, petitioner’s motion to remove George as
Trustee of the Trust raises only an academic issue, as George is no longer serving as Trustee of
the Trust. As such, petitioner’s request to remove George as Trustee of the Trust is moot.
Finally, petitioner requests that this court hold respondents’ summary judgment motion
in abeyance, pending resolution of a related Surrogate’s Court probate proceeding. However,
it would be procedurally improper to grant this request, as petitioner failed to include this
request for relief in a notice of motion or cross-motion (see CPLR 2214 [a]; see also Arriaga v
Laub Co., 233 AD2d 244, 245 [1st Dept 1996] [as plaintiffs failed to formally and specifically
demand in notice of motion that counterclaims be stricken, the trial court did not err in denying
such relief]). Accordingly, petitioner’s request is denied.
Accordingly, respondents’ motion for summary judgment is granted, and the petition is
dismissed.
Petitioner’s Cross-Motion to Remove David as Successor Trustee
Petitioner also cross-moves for David’s removal as successor trustee of the Trust (see
Dolgon affirmation, ¶¶ 83-93). The cross-motion is denied. First, petitioner has not pled a
cause of action for David’s removal as successor trustee of the Trust, and thus, is not entitled
to summary relief on a cause of action that she has not even pled in her petition (see Matter of
Spade, 28 AD2d 552, 552 [2d Dept 1967] [“The petition for an accounting and the objections
thereto are pleadings similar to a complaint and an answer and they define the issues and limit
the relief” that can be granted] [internal quotation marks and citation omitted]).
Moreover, petitioner has failed to demonstrate that David should be removed as
successor trustee. “[T]he testator [or grantor] still enjoys the right to determine who is most
suitable among those legally qualified to settle his [or her] affairs and execute his [or her] will,
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 16 of 21 Motion No. 002
16 of 21 [* 16] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
and his [or her] solemn selection is not lightly to be disregarded” (see Matter of Leland’s Will,
219 NY 387, 393 [1916]; accord Matter of Epstein, 202 AD3d 669, 672 [2d Dept 2022]).
“Removal of a fiduciary constitutes a judicial nullification of the testator’s [or the grantor’s]
choice [of a fiduciary] and may only be decreed when the [exclusive] grounds set forth in the
relevant statutes have been clearly established” (Matter of Duke, 87 NY2d 465, 473 [1996];
accord Matter of Steward, 193 AD3d 940 [2d Dept 2021]; see also DePicabia v Chester Natl.
Bank, 50 AD2d 812, 813 [2d Dept 1975] [“The Supreme Court, in the exercise of its equity
jurisdiction, has the power to remove a trustee of a trust, who is a party to the action, if the facts
establish that the trustee was guilty of improper conduct in the administration of the trust”]).
As a result, “the rule has long prevailed that ‘courts are required to exercise the power
of removal sparingly and to nullify [a] testator’s [or a grantor’s] choice [of fiduciary] only upon
a clear showing of serious misconduct that endangers the safety of the estate’” or trust (Matter
of Duke, 87 NY2d at 473 [citation omitted]; accord Matter of Berri, 130 Misc 527, 536 [Sur
Ct, Kings County 1927] [“The power of removal is exercised sparingly by courts, and will not
be exercised unless there is a clear necessity for such drastic action. Only such conduct as
jeopardizes the fund will induce the court to remove a trustee, particularly one in whom special
confidence has been reposed by the creator of the trust”]; see also Matter of Giles, 74 AD3d
1499, 1503 [3d Dept 2010] [“‘(r)emoval of a trustee is a drastic action not to be undertaken
absent a clear necessity’”] [citation omitted]; Tsavaris v Tsavaris, 2011 NY Slip Op 31889[U]
[Sup Ct, NY County 2011] [“Notwithstanding this broad grant of power, the Court is mindful
that removal of a trustee is a drastic remedy and should be used sparingly in a case such as this
where it would frustrate the intent of the trust’s creator”]).
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 17 of 21 Motion No. 002
17 of 21 [* 17] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
Where, as here, a dispute involving a lifetime trust is before the Supreme Court under
Article 77 of the CPLR, the Supreme Court derives its power to remove a trustee from EPTL §
7-2.6 (see EPTL § 7-2.6; Matter of Casamassima v Casamassima, 30 AD3d 596 [2d Dept
2006]). EPTL § 7-2.6 provides that the Supreme Court has the power “to suspend or remove a
trustee who has violated or threatens to violate his trust, who is insolvent or whose insolvency
is imminent or apprehended or who for any reason is a person unsuitable to execute the trust”
(see EPTL § 7-2.6 [a] [2]); accord Matter of Giles, 74 AD3d at 1503 [“an individual seeking
removal (of a trustee) bears the burden of demonstrating that the trustee has violated or threatens
to violate his or her trust or is otherwise unsuitable to execute the trust”]).
“When evaluating a trustee’s conduct, the relevant inquiry is whether the trustee has
negatively impacted the trust or failed to serve the purpose of the trust” (Matter of James H.
Supplemental Needs Trusts, 172 AD3d 1570, 1573 [3d Dept 2019]). “‘Although discord
between the trustee and others involved with the trust, standing alone, is typically an insufficient
basis for removal, such conflict may support removal if the conflict thwarts proper
administration of the trust or otherwise subverts the purpose of the trust’” (Matter of Gimbel v
Leonard, 205 AD3d 538, 538-539 [1st Dept 2022] [citation omitted]; see also Matter of Rudin,
15 AD3d 199, 200 [1st Dept 2005] [“‘it is actual misconduct, not a conflict of interest, that
justifies the removal of a fiduciary’”] [citation omitted]). The party seeking a trustee’s removal
must bear the burden of proof, by clear and convincing evidence (see 9 Warren’s Heaton on
Sur Ct Prac § 117.05 [1] [b] [“Clear and convincing evidence of fiduciary misconduct must be
presented before removal will be directed, and only then, after an evidentiary hearing has been
had”]).
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 18 of 21 Motion No. 002
18 of 21 [* 18] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
Here, petitioner has not pled, and does not contend, that David has violated or threatens
to violate the trust placed in him, or is currently insolvent or likely to be insolvent imminently
(see Dolgon affirmation, ¶ 83; Kristina Yonke affidavit, ¶¶ 5-11). Instead, petitioner merely
alleges, in conclusory terms and without any evidentiary support, that David should be removed
as successor trustee of the Trust because of actions that George undertook (see Dolgon
affirmation, ¶ 86 [“The Petition sought (the) removal of Mr. D’Angelo as trustee because of his
breaches of fiduciary duty and improper self-dealing discussed herein. Mr. D’Angelo, and now
David, have also breached their fiduciary duty by failing to account for their decisions and
actions in administrating the trust for the period between its creation on October 1, 2010 and
Ingrid’s death on August 7, 2012]; see also id., ¶ 92 [“David is still liable to Kristina for his
father’s breaches of the trust”]). However, as previously discussed, petitioner lacks standing to
complain about any transactions that occurred prior to the Decedent’s death.
With respect to David himself, petitioner only alleges that “Mr. D’Angelo and David
engaged in conduct and acted in concert with each other in ways that did not benefit Ingrid,
Kristina, or the Trust” by acting improperly “to bolster their own compensation” (Dolgon
affirmation, ¶ 89). However, petitioner fails to submit any evidence to support these
unsubstantiated and conclusory assertions, or to demonstrate that the Trust was negatively
impacted by such alleged conduct. As such, these assertions are insufficient to justify David’s
removal (see Matter of Joan Moran Trust, 166 AD3d 1176, 1180 [3d Dept 2018] [affirming the
denial of a Trustee's removal on ground that “petitioner failed to submit any evidence
demonstrating that the trust assets suffered any financial harm as a result [of alleged
mismanagement”]; Paprin v Silberstein, 2005 WL 8158666, * 2 [Sup Ct, New York County
2005] [“Even if true, it does not appear that the conduct described in plaintiff's new allegations
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 19 of 21 Motion No. 002
19 of 21 [* 19] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
would interfere with the proper administration of the trust”]; see also Matter of Varone
Irrevocable Trust, 195 AD3d 728, 730 [2d Dept 2021] [the court “properly denied that branch
of the motion which was to remove the trustee”]).
Indeed, petitioner’s main concern appears to be that David has refused to transfer the
Trust’s bank account from Philadelphia to New York (see 1/31/19 affidavit of Christina Yonke
[NYSCEF Doc No. 81], ¶¶ 7-8). However, such allegation, even if true, amounts to nothing
more than discord, rather than actual misconduct requiring removal.
Moreover, contrary to petitioner’s unsubstantiated assertions, David submits an
affidavit in which he alleges that, since succeeding George as Trustee of the Trust, he has
endeavored to honor the fiduciary duties that have been entrusted to him as successor trustee of
the Trust:
“Since George’s passing earlier this year, I have acted as Successor Trust of the Trust. I have taken great care to honor the fiduciary duties that have been entrusted to me as Successor Trustee. For example, I have arranged for Kristina (the remainder beneficiary of the Trust, following the Decedent’s death) to receive access to the statements for the Trust's investment accounts, and earnestly worked to address any concerns that Kristina has expressed relative to the Trust. From my perspective, I have developed a productive working relationship with Kristina”
(affidavit of David D’Angelo [NYSCEF Doc No. 70], ¶ 3).
Accordingly, the cross-motion for removal of David as successor trustee is denied.
The court has considered the remaining arguments and finds them to be without merit.
Accordingly, it is
ORDERED that respondents’ motion for summary judgment is granted, and the petition
is dismissed, with costs and disbursements to respondents as taxed by the Clerk upon the
submission of an appropriate bill of costs; and it is further
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 20 of 21 Motion No. 002
20 of 21 [* 20] INDEX NO. 150398/2015 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 07/10/2024
ORDERED that petitioner’s cross-motion is denied; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This constitutes the decision and order of this Court.1
7/10/2024 $SIG$ DATE James d’Auguste, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES FIDUCIARY APPOINTMENT REFERENCE TRANSFER/REASSIGN
1 The Court notes the matter has not been transferred to Surrogate’s Court, and remains in Supreme Court because, as the parties have noted the trust assets are maintained in accounts at a UBS Financial Services, Inc. branch in Conshohocken Pennsylvania; the investments have performed well from guidance Trustee David D’Angelo has received from UBS’s financial advisors; no party has moved to transfer the proceedings from Supreme Court to Surrogate’s Court pursuant to CPLR 325(e); the Trust does not have assets in the State of New York, nor does the acting trustee reside in the State; and finally, the parties contend as the matter has been pending before the Supreme Court since 2015, the Supreme Court is “familiar with the parties and issues” involved, and the Court is “well-equipped to resolve them” [NYSCEF Doc. Nos. 91, 92].
150398/2015 HAMNER YONKE, KRISTINA vs. D'ANGELO, GEORGE A. Page 21 of 21 Motion No. 002
21 of 21 [* 21]