September 24, 2013
In the Matter of the Judicial Settlement of the First Intermediate Account of Proceedings of Susan Lasdon Abrams as Co-Trustee of the Trust Created for the Benefit of Jacqueline M. Lasdon Under Article FIFTH of the Last Will and Testament of Stanley S. Lasdon, Deceased
For Petitioner, Susan Lasdon Abrams: Lansing R. Palmer, Esq. of Putney, Twombley, Hall & Hirson, LLP
For Objectant, Jeffrey S. Lasdon: Melvin S. Hirshowitz, Esq.
For Objectant, Jacqueline M. Lasdon: Kenneth T. Wasserman, Esq.
Guardian ad Litem for unborn issue of Jacqueline M. Lasdon, Roy A. McKenzie, Esq.
Rita M. Mella, J.
This partial summary judgment motion by co-trustee Susan Abrams seeks to dismiss three of the several objections to her first intermediate accounting. Her father, decedent Stanley Lasdon, established the trust at issue in his will, and it currently provides income to Jacqueline Lasdon, Susan's niece and decedent's granddaughter. Her intermediate account covers the period from the trust's inception, January 31, 1993, through January 31, 2012.
Three sets of objections would deny Susan her statutory commissions (SCPA § 2309) as co-trustee. The respective objectants are Susan's brother and co-trustee, Jeffrey Lasdon, his daughter, the trust beneficiary Jacqueline, and the guardian ad litem for Jacqueline's unborn issue, who would be the remainder beneficiaries of the trust should Jacqueline not survive until its termination, which occurs in 10 years time when she turns 35. 
The objections at issue are all identically numbered and made by each objectant: Objection (2) seeks to deny petitioner annual commissions prior to June 22, 2006, as barred by the statute of limitations; Objection (3) claims that Susan is precluded from recovering annual commissions because the annual statements required by SCPA 2309(4) were never served or furnished by Susan; and Objection (7) would deny Susan commissions because she performed no services on behalf of, or which benefitted, the trust. For the reasons set forth below, the motion should be granted and these objections dismissed.
This motion, submitted prior to the conclusion of discovery by the parties on the objections,  follows on the heels of the settlement of final accounts for identical trusts for the benefit of Susan's children, Michael and Daniel. Those proceedings involved essentially identical objections to those at issue in this motion, but with the parties in roles reversed from those here. Jeffrey was there the accounting fiduciary against whose accounts Susan as co-trustee, and Michael and Daniel, as respective beneficiaries, lodged objections.  Those contested accountings were the subject of protracted proceedings that eventually resulted in decrees, which, after this motion was submitted for the court's decision, were modified on appeal by the Appellate Division, First Department (Matter of Lasdon, 105 A.D.3d 499 [1st Dept 2013]). Although the First Department modified this court's determination and eliminated the surcharge against Jeffrey for failure to timely distribute the remainders upon termination, it upheld the award of commissions to Jeffrey.
In its decision, the First Department specifically rejected the claim which is made in Objection (3), namely, that the failure to provide annual statements pursuant to SCPA § 2309(4) resulted in a forfeiture of annual commissions payable under SCPA § 2309(2) (id. at 500). Furthermore, although the objections there, identical to those made here in Objection (2) regarding the statute of limitations, were not specifically referred to in the First Department decision, the summary judgment decision of this court regarding the settlement of the accounts for the trusts benefitting Michael and Daniel specifically rejected this statute of limitations argument (Matter of Lasdon, NYLJ, June 29, 2010, at 37, col 1 [Sur Ct, New York County]; Matter of Lasdon, NYLJ, Nov. 19, 2010, at 36 [Sur Ct, New York County, No. 1993-703] [adhering to the commissions decision on reargument]). This court did so based on statutory language that the First Department quoted from SCPA § 2309(4): "A trustee shall not be deemed to have waived any commission by reason of his failure to retain them at the time when he becomes entitled thereto" (Lasdon, NYLJ, June 29, 2010, at 37, col 1). And both the initial decision in this court and the First Department modification cited the Practice Commentaries to SCPA § 2309, which noted that a trustee, who does not retain them annually, may receive them on the settlement of her account (Lasdon, 105 A.D.3d at 500 and Lasdon, NYLJ, June 29, 2010, at 37, col 1, citing Turano, Practice Commentaries, McKinney's Cons Law of New York, Book 58A, SCPA § 2309, at 481 ).
Consequently, petitioner has met her burden on this summary judgment motion of establishing no question of fact regarding Objections (2) and (3), and objectants, in response, have offered no evidence raising a question of fact as to these issues, nor indicated a reasonable excuse as to why such evidence could not be provided in opposition (Zuckerman v City of New York, 49 N.Y.2d 557 ; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 ). Objections (2) and (3) as made by each of the three objectants are dismissed. 
Regarding the final objection at issue, Objection (7), it must be noted that the co-trustees of these trusts agreed at some point in 1995 that co-trustee Susan should have primary responsibility for the trusts benefitting her children, and that co-trustee Jeffrey should have primary responsibility for the trust benefitting his child, the trust currently at issue. Susan does not contest the facts behind this objection; she does not deny that she, in essence, performed no services for this trust. Her argument instead is that she behaved as Jeffrey did in administering the trusts for her own children. Since he was allowed commissions for behavior as fiduciary regarding those trusts, conduct that was essentially identical to her own regarding this trust, she should be allowed commissions as Jeffrey was.
This point is well taken. The First Department noted in its affirmance of the award of commissions to co-trustee Jeffrey for the trusts benefitting Michael and Daniel that Jeffrey "did not engage in fraud, gross neglect of duty, intentional harm to the trust, sheer indifference to the rights of others or disloyalty" (105 A.D.3d at 500 [citations omitted]).  The objections make no such claims regarding Susan's conduct, and consequently, they provide no basis for the denial of Susan's commissions. 
In opposition, however, objectants suggest an excuse for their failure to provide evidence of bad faith on the part of Susan, namely, that discovery has yet to conclude. That basis for opposing summary disposition is codified in CPLR 3212(f), which provides the court may deny the motion or order a continuance where affidavits in opposition show that "facts essential to justify opposition may exist but cannot then be stated..." However, no one actually disputes the facts regarding this objection, which specifically states only that petitioner should be denied commissions for having "performed no services on behalf of, or which benefit[t]ed, the Trust." Moreover, the affidavits in opposition to this motion do not indicate an evidentiary basis to suggest that additional disclosure might lead to some proof of claims of bad faith, self-dealing, etc., even though they are not actually pled (see Lambert v Bracco, 18 A.D.3d 619 [2d Dept 2005]; Hayden v City of New York, 26 A.D.3d 262 [1st Dept 2006]; Fulton v Allstate Ins. Co., 18 A.D.3d 380 [1st Dept 2005]).  Objection (7) made by the three objectants should thus be dismissed.
Should discovery reveal evidence of petitioner's bad faith, disloyalty, self-dealing or fraud, objectants may move to amend their objections to include such facts as a basis for reducing or denying commissions (cf. Matter of Rubenstein, 72 A.D.3d 692 [2d Dept 2010] [aggregation of factors can lead to commissions disallowance]; see also In re Gregory Stewart Trust, 108 A.D.3d 461 [1st Dept 2013][later misconduct by trustee may be considered in determining commissions award for prior years]). The current objections and opposition papers however provide no basis for denying the motion at this juncture.
Accordingly, the partial summary judgment motion is granted, and Objections (2), (3), and (7) of each of the three objectants are dismissed.
This decision constitutes the order of the court.