| Matter of Doman |
| 2009 NY Slip Op 09222 [68 AD3d 862] |
| December 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of Judith N. Doman, Also Known as Judith Doman,Deceased. Cynthia P. Schneider, Appellant; Alexander N. Doman,Respondent. |
—[*1] Novick & Associates, Huntington, N.Y. (Donald Novick and Albert Messina of counsel), forrespondent.
In a probate proceeding, in which Cynthia P. Schneider petitioned, inter alia, to invalidate aninter vivos trust, the petitioner, as the preliminary executor of the Estate of Judith N. Doman,appeals from an order of the Surrogate's Court, Suffolk County (Czygier, S.), dated September23, 2008, which granted the pre-answer motion of the coexecutors of the estate of NicholasDoman to dismiss the petition pursuant to CPLR 3211.
Ordered that the order is affirmed, with costs.
The decedent, Judith N. Doman, also known as Judith Doman (hereinafter Judith), and herhusband, Nicholas Doman (hereinafter Nicholas), were married on June 6, 1992, a secondmarriage for both, where each spouse had two adult children from the prior marriage. On August24, 1998, Judith executed a trust instrument called the Doman Qualified Personal ResidenceTrust (hereinafter the Trust), which designated Judith as the grantor and cotrustee of the Trustand provided, inter alia, that Judith would receive the income from the Trust for life. The Trustfurther provided for an unrelated trust created for the primary benefit of Nicholas's sonAlexander Doman to receive the remainder of the Trust upon Judith's death. The shares referableto a Fifth Avenue cooperative apartment (hereinafter the shares) in which Judith and Nicholasresided (hereinafter the Apartment) were identified as the property of the Trust.
Nicholas transferred his ownership of the shares to Judith and, inter alia, assigned aproprietary lease dated January 29, 1999, which the cooperative corporation executed on March4, 1999. Judith conveyed the shares to the Trust and assigned the proprietary lease, also datedJanuary 29, 1999, and executed by the cooperative corporation on March 4, 1999.
After Nicholas's death in January 2004, Judith and the cotrustee of the Trust sold theApartment for the sum of $1.6 million and converted the Trust to a qualified annuity trust(hereinafter the QAT), pursuant to the terms of the Trust. At the time of Judith's death on May 5,2006, she had received commissions and distributions from the Trust and the QAT in the sum ofmore than $236,000. The present value of the QAT is $1.1 million.[*2]
The petitioner, Cynthia P. Schneider, Judith's daughterand the primary beneficiary of Judith's estate, commenced a proceeding on April 4, 2008, interalia, to invalidate the Trust because it was not funded at the time it was created, and to impose aconstructive trust on the remainder of the Trust property.
On a motion to dismiss a petition pursuant to CPLR 3211 (a) (7), the court must liberallyconstrue the pleading, with the facts alleged deemed to be true, and accord the petitioner thebenefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83 [1994];Katz v Katz, 55 AD3d 680,682 [2008]; Breytman v OlinvilleRealty, LLC, 54 AD3d 703, 703-704 [2008]). When evidentiary material is considered,"[t]he criterion is whether the proponent of the pleading has a cause of action, not whether he [orshe] has stated one" (Fast TrackFunding Corp. v Perrone, 19 AD3d 362, 362-363 [2005], quoting Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]).
A valid express trust requires (1) a designated beneficiary, (2) a designated trustee, (3) afund or other property sufficiently designated or identified to enable title of the property to passto the trustee, and (4) actual delivery of the fund or property, with the intention of vesting legaltitle in the trustee (see Brown v Spohr, 180 NY 201, 209 [1904]; cf. EPTL7-1.18 ["A lifetime trust shall be valid as to any assets therein to the extent the assets have beentransferred to the trust"]).
There is no support for the petitioner's contention that the Trust was invalid because theproperty which was the subject of the Trust was not delivered into the Trust until six monthsafter the Trust was created (cf. Matterof Marcus Trusts, 2 AD3d 640 [2003]).
The petitioner's remaining contentions are without merit. Mastro, J.P., Florio, Balkin andLeventhal, JJ., concur.