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In re Weinraub

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 29, 2009

IN RE JEROME M. WEINRAUB, ETC.,

Decree, Surrogate's Court, New York County (Renee R. Roth, S.), entered on or about February 25, 2008, which, to the extent appealed from, as limited by the briefs, granted the motion of the co-trustee, Jerome M. Weinraub, to remove S. Sidney Mandel, Esq. as trustee of the captioned trust pursuant to SCPA 719, 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.

Andrias, J.P., Friedman, Acosta, DeGrasse, RomÁn, JJ.

2095/06

The Surrogate's Court providently exercised its discretion in removing appellant as trustee of the captioned trust (see SCPA 719[1], [3], [10]; 711[3], [8], [12]; Matter of Duke, 87 NY2d 465, 472-473 [1996]). The appellant failed to account over many years, despite repeated requests by a co-trustee and beneficiary and a court order compelling him to do so by a date certain. In a parallel proceeding in Westchester County, the appellant, who is an attorney, was removed as trustee of the same decedent's testamentary trusts after he not only failed to purge a contempt order by providing accountings, but then failed to appear for the subsequent removal hearing and left the jurisdiction despite a warrant of commitment being issued by the Surrogate's Court of that County (2008 NY Misc LEXIS 4366, affd __ AD3d __, 885 NYS2d 643 [2009]). Under these circumstances, his removal as co-trustee by the Surrogate of New York County was warranted (see Flaum v Birnbaum, 191 AD2d 227 [1993]); In re Estate of Britton, 173 Misc 2d 300, 303 [1997]).

We have considered the appellant's remaining contentions and find them unavailing.

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

20091229

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