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Danger v. Combier

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 1, 2009

JULIA DANGER, PLAINTIFF-APPELLANT,
v.
ELIZABETH COMBIER, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 2, 2008, which, insofar as appealed from in this action for, inter alia, the conversion of monies from a trust, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

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.

Tom, J.P., Andrias, Nardelli, DeGrasse, Freedman, JJ.

606259/98

The complaint was properly dismissed since the action is barred by reason of the release that plaintiff executed in favor of both the trustee and defendant (her sister) that was contained in the instrument that settled the account of the subject trust, which had been established by the parties' maternal grandfather for the benefit of the parties' mother, with the remainder of the trust to be divided equally between the parties upon their mother's death (see D'Amico v First Union Natl. Bank, 285 AD2d 166, 173 [2001], lv denied 99 NY2d 501 [2002]). Furthermore, defendant neither controlled the trust nor determined how its assets were to be distributed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091001

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