| Matter of Siegel |
| 2011 NY Slip Op 09337 [90 AD3d 937] |
| December 20, 2011 |
| Appellate Division, Second Department |
| In the Matter of Annette G. Siegel, Deceased. Deborah E. Siegel, asPreliminary Executor of Martin Siegel, Deceased, Appellant-Respondent; David I. Siegel et al.,Respondents-Appellants. |
—[*1] V. Roy Cacciatore, P.C., Freeport, N.Y., for respondents-appellants.
In a proceeding to settle the final account of the petitioner, Deborah E. Siegel, as preliminaryexecutor of the estate of Martin Siegel, with respect to Martin Siegel's performance as co-trusteeof the testamentary trust of Annette G. Siegel, deceased, the petitioner appeals from so much ofan order of the Surrogate's Court, Nassau County (Riordan, S.), dated November 3, 2010, asdenied her cross motion for summary judgment dismissing the objections of Deborah R. Siegeland David I. Siegel claiming the right to repayment and restitution, and a right to assert a lien oncertain real property solely owned by the petitioner upon Martin Siegel's death, as the survivingtenant by the entirety, and the objectants Deborah R. Siegel and David I. Siegel cross-appeal, aslimited by their brief, from so much of the same order as denied their motion for summaryjudgment granting their objections, inter alia, claiming a right to fix the amount owed by theEstate of Martin Siegel to the testamentary trust of Annette G. Siegel, deceased, in the sum of$371,000, plus interest at the statutory rate, and to impose a lien in that amount on the aforesaidreal property.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
Martin Siegel (hereinafter Siegel) was the husband of the late Annette G. Siegel (hereinafterthe decedent), who died on February 23, 2004, and the father of the objectants, Deborah R.Siegel and David I. Siegel. The decedent's will provided for a testamentary trust (hereinafter thetrust), and appointed Siegel and their son, David I. Siegel, as co-trustees. The income of the trustwas payable to Siegel in an amount determined by the trustees in their "sole discretion,"consistent with the decedent's intent to "maintain my spouse liberally according to my spouse'saccustomed standard of living." The will further provided that the trustees could distributeportions of the principal to Siegel in amounts that "my Trustees, in their sole and absolutediscretion, shall determine," and upon his death, the principal would be paid to the objectants.
On November 1, 2004, Siegel renounced his "survivorship interest" in certain real propertylocated in Plainview (hereinafter the Plainview property), which he owned jointly with thedecedent, as tenants by the entirety. His renunciation specified that the Plainview property should[*2]be treated "as if [it] were owned by myself and the decedentas tenants in common." Thus, he renounced his right to take the decedent's interest by operationof law, as surviving tenant by the entirety; he did not renounce any other rights he might have tothe Plainview property (see EPTL 2-1.11 [c] [1]). The decedent's one-half interest in thePlainview property was treated as part of the testamentary trust.
On September 25, 2005, Siegel married the petitioner, and on December 20, 2006, theypurchased a house in Roslyn Harbor (hereinafter the Roslyn Harbor property), jointly, as tenantsby the entirety. To finance the purchase, in November 2005, Siegel, claiming he was sole ownerof the Plainview property which he owned jointly with the trust, borrowed the sum of $400,000against that property. On January 29, 2007, he sold the subject property for the sum of $510,000,paid off the $400,000 loan, and netted the sum of $97,466.68 after closing expenses andadjustments. Siegel also took additional funds from two accounts held by the trust.
Siegel died on November 16, 2007, and under the terms of his will, the petitioner became theexecutor of his estate. In that capacity, the petitioner filed a final account of Siegel's acts astrustee of the decedent's testamentary trust, claiming distributions to Siegel of, inter alia,$48,733.36, constituting one half of the $97,466.68 which he received upon the sale of thePlainview property which he held jointly with the trust, and additional funds which he took fromthe accounts held by the trust. After filing objections, the objectants moved for summaryjudgment granting their objections, inter alia, claiming a right to fix the amount owed by Siegelas trustee to the trust, and to impose a lien on the Roslyn Harbor property for that amount. Thepetitioner cross-moved for summary judgment dismissing those objections, claiming that theamounts taken by Siegel from the trust were proper distributions, and, in any event, any right toassert a lien against the Roslyn Harbor property terminated upon Siegel's death, when thepetitioner assumed sole title as the surviving tenant by the entirety.
In the order appealed from, the Surrogate's Court denied the objectants' motion for summaryjudgment without prejudice and denied the petitioner's cross motion. The Surrogate's Court foundthat the record was "ambiguous" as to whether the funds taken by Siegel from the trust weremisappropriations, loans, or legitimate distributions, and that the petitioner failed to establish as amatter of law that she "had no knowledge of the source of the funds [Siegel] used to purchase"the Roslyn Harbor property. We affirm the order insofar as appealed and cross-appealed from.
The Surrogate's Court properly determined, in effect, that there were triable issues of fact asto whether the funds taken by Siegel from the trust were misappropriations, loans, or legitimatedistributions. The objectants, as movants for summary judgment, had the burden of establishingtheir entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49NY2d 557, 562 [1980]), and failed to meet that burden. Likewise, the Surrogate's Court properlydenied the petitioner's cross motion for summary judgment dismissing the objectants' claims of aright to repayment and restitution, and a right to assert a lien on the subject property. Thepetitioner failed to establish, prima facie, that she did not consent to Siegel's creation of a lien onthe Roslyn Harbor property, or that she did not participate in his alleged misappropriation of thetrust assets. In light of the parties' failure to meet their respective prima facie burdens, it isunnecessary to review the sufficiency of the opposing papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
The parties' remaining contentions either are without merit or need not be addressed in lightof our determination. Rivera, J.P., Leventhal, Roman and Sgroi, JJ., concur.