Matter of James H. Supplemental Needs Trusts
Published by
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: May 9, 2019
Calendar Date: March 22, 2019
Before: Garry, P.J., Mulvey, Aarons, Rumsey and Pritzker, JJ.
Law Offices of David A. Antwork, PC, Merrick (David A. Antwork of counsel), for appellant.
Kathleen Toombs, Schenectady, pro se, and Nicholas E. Tishler, Niskayuna, for respondent.
MEMORANDUM AND ORDER
Mulvey, J.
Appeals (1) from an order, judgment and decree of the Supreme Court (Buchanan, J.), entered June 12, 2017 in Schenectady County, which granted petitioner‘s application, in a proceeding pursuant to
James H.,
Supreme Court did not abuse its discretion in permitting petitioner to amend the petition. Initially, respondent did not argue in Supreme Court that the amendment was improper based on venue, rendering that argument unpreserved for our review. “A motion to conform the pleadings to the proof may be made at any time and should be liberally granted unless doing so results in prejudice to the nonmoving party” (Noble v Slavin, 150 AD3d 1345, 1346 [2017] [internal quotation marks and citations omitted]; see
Petitioner‘s original application referenced numerous family trusts and sought removal of respondent as trustee for the first-party SNT for which James H. was beneficiary. The petition indicated that there were three SNTs but noted that petitioner was not sure that she had all the trust documents and information. The petition requested that respondent be required to provide documents and clarify the various trusts, accounts they held and evidence of their funding and, if respondent had failed to fund any trust, that the court take necessary action. In opposition, respondent provided the trust documents for six SNTs in which James H. was named as a beneficiary, noting that one had not been executed, respondent was named as a trustee of three and only one had been funded. The two unfunded SNTs of which respondent was a trustee were to be funded with assets from the estate of respondent‘s and James H.‘s mother, who died in 2014; respondent had not acted — either in his role as trustee or as executor of the mother‘s estate — to ensure that those two trusts were funded.
To the extent that respondent argues that he was prejudiced because he did not have notice that the third-party SNTs would be the subject of the underlying proceeding, such contention is belied by the record, which shows that both the original petition and respondent‘s opposition papers reference the various trusts, including the third-party SNTs, that listed James H. as beneficiary (see Noble v Slavin, 150 AD3d at 1346-1347; Lakshmi Grocery & Gas, Inc. v GRJH, Inc., 138 AD3d at 1292). Moreover, respondent‘s ability to formulate his defense was not impeded by the fact that the initial petition did not seek his removal as trustee of the third-party SNTs because his defense for all the trusts is essentially the same — that he was performing well as trustee (see Kimso Apts., LLC v Gandhi, 24 NY3d at 412; Noble v Slavin, 150 AD3d at 1347-1348; compare Young v Zwack, Inc., 98 AD2d 913, 914 [1983])2. Thus, Supreme Court did not abuse its discretion in granting petitioner‘s motion to amend the pleadings.
Supreme Court did not err in removing respondent as trustee. A trustee may be removed if he or she “has violated or
Petitioner‘s application to have respondent removed as trustee is based not only on her difficulty communicating with respondent, but also on his refusal to timely pay for various expenses of James H., including eyeglasses, dental care, transportation and medical treatments. Pursuant to the terms of the SNTs, their purpose is to supplement the government benefits that James H. receives, and respondent, as trustee, has the authority to spend the income and principal for James H.‘s benefit, though the principal should only be spent if James H.‘s standard of living cannot be maintained otherwise. Petitioner submitted various email correspondence showing that respondent responded to her in a rude and demanding manner, failed to timely submit the Medicaid spend down for one month resulting in a delay in James H.‘s services, refused to provide payment for a mattress topper recommended by James H.‘s doctor, refused to provide James H. with money to cover the cost of health care incidentals and refused to pay for James H.‘s oral surgery and hyperbaric treatments. Respondent also took more than six months to reimburse the cost of James H.‘s eyeglasses.
Although respondent had an obligation to ensure that the trust disbursed only proper payments, the record indicates that he struggled to understand the parameters of and proper payments under an SNT, he requested excessive proof of expenses and often did not timely pay requests even when proper proof was submitted. By the time of the hearing, respondent had paid all outstanding bills and requests by petitioner,
Supreme Court did not abuse its discretion in adhering to its prior decision upon reargument and in denying respondent‘s motion to renew. Respondent‘s grounds for reargument were that the court erred in granting petitioner‘s motion to amend the pleadings. As we have already determined that the court did not abuse its discretion in granting the amendment, we conclude that the court did not err in, upon reargument, adhering to that decision. A motion to renew must be based on new facts not previously offered that would change the prior determination and must contain a reasonable justification for the failure to present such facts on the original motion (see CPLR 2221 [e]; Matter of Karnofsky [New York State Dept. of Corr. & Community Supervision], 125 AD3d 1198, 1200 [2015]; Hurrell-Harring v State of New York, 112 AD3d 1217, 1218 [2013]). “[A] motion to renew is not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance” (Howard v Stanger, 122 AD3d 1121, 1123 [2014] [internal quotation marks and citation omitted], lv dismissed 24 NY3d 1210 [2015]; accord Scott v Thayer, 160 AD3d 1175, 1178 [2018]). Only if the trial court abused its discretion will we disturb the decision on a motion to renew (see Hurrell-Harring v State of New York, 112 AD3d at 1218; M & R Ginsburg, LLC v Orange Canyon Dev. Co., LLC, 84 AD3d 1470, 1472 [2011]). Respondent explained that the information he presented on his motion to renew had been in his possession prior to his response to the original motion, but he had not presented it at that time on the advice of counsel. Because respondent did not offer new facts and his litigation strategy — which he now regrets — does not constitute a justifiable excuse for failing to present the information earlier, Supreme Court did not abuse its discretion in denying that part of respondent‘s motion seeking renewal (see DeMaille v State of New York, 166 AD3d 1405, 1408 [2018]; Scott v Thayer, 160 AD3d at 1177-1178; Johnson v Title N., Inc., 31 AD3d 1071, 1072 [2006]; compare Matter of Karnofsky [New York State Dept. of Corr. & Community Supervision], 125 AD3d at 1200; Hurrell-Harring v State of New York, 112 AD3d at 1219).
Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur.
ORDERED that the order, judgment and decree entered June 12, 2017 and the order entered September 26, 2017 are affirmed, with costs.