In re Belsky, 2009 NY Slip Op 52692(U) (N.Y. Surr. Ct. 12/18/2009)

• Decision Date: 18 December 2009
• Docket Number: 199852
• Citation: 2009 NY Slip Op 52692
• Parties: ACCOUNTING OF BRUCE H. BELSKY, MIRIAM BELSKY AND GLORIA GILSON, AS EXECUTORS AND TRUSTEES OF THE TRUST UNDER THE LAST WILL AND TESTAMENT OF FRANK HOMELSKY, Deceased.
• Court: New York Surrogate Court

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2009 NY Slip Op 52692(U)

ACCOUNTING OF BRUCE H. BELSKY, MIRIAM BELSKY AND GLORIA GILSON, AS EXECUTORS AND TRUSTEES OF THE TRUST UNDER THE LAST WILL AND TESTAMENT OF FRANK HOMELSKY, Deceased.

199852

Surrogate's Court, Nassau County.

Decided December 18, 2009.

Jaspan Schlesinger Hoffman LLP, Garden City, New York, Petitioner.

Kurzman Eisenberg Corbin & Lever LLP, White Plains, New York, Objectant.

JOHN B. RIORDAN, J.

In this contested accounting proceeding, petitioner, Bruce Belsky, moves for an order permitting him to amend the final accounting to include trustee's commissions to which he alleges he is entitled. Respondent, Steven Lever, opposes the motion. For the reasons that follow, the motion is granted

The decedent, Frank Homelsky, died on May 6, 1979, a resident of Nassau County. His will and a codicil thereto were admitted to probate by decree dated May 25, 1979. The will nominates the decedent's two daughters, Miriam Belsky and Gloria Gilson, and his grandson, Bruce H. Belsky, as co-executors and co-trustees of the trust created under Article FIFTH of the will. Letters testamentary and letters of trusteeship issued to them. The income beneficiaries of the Article FIFTH trust are the decedent's two daughters and Julia Homelsky, the decedent's spouse, who died only a few months after the decedent. The remaindermen of the trust are the decedent's grandchildren, Bruce H. Belsky, Mark Belsky, Steven Lever and Ellen Lever. Steven filed objections to the account.

According to his attorney, Bruce is seeking leave to amend the account to include two-thirds trustee's commissions chargeable to principal due to Bruce for the period of the account as shown on the amended affidavit of Stephen B. Hand, sworn to on June 17, 2009. The total amount of these commissions is claimed to be $183,602.00.¹

Steven's counsel correctly points out that Bruce's moving papers do not contain a copy of the proposed amended petition as is required in a motion made pursuant to CPLR 3025 (b) (amendments to pleadings with leave of court). However, it is this court's practice to allow petitions for accountings to be amended by affidavit, and a copy of the amended affidavit amending accounting is annexed to Bruce's moving papers. The affidavit provides Steven with all of the pertinent information that would be contained in an amended petition.

"Motions for leave to amend pleadings should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient" (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27 [2d Dept 2008] [citations omitted]). Neither is the case here. The fact that Bruce did not ask for the commissions at issue in the petition or account does not constitute a waiver of them. "A waiver is an intentional abandonment or relinquishment of a known right. It is essentially a matter of intention. Negligence, oversight or thoughtlessness does not create it" (Matter of Sillman, 82 Misc 2d 736, 738 [Sur Ct, New York County 1975]. Even if Bruce were deemed to have voluntarily waived these commissions, such a waiver may be withdrawn (Matter of Grace, 61 Misc 2d 51, 58 [Sur Ct, Nassau County 1970]; Matter of Grace Candis Parris, NYLJ, May 17, 2005, at 32, col 2 [Sur Ct, Kings County]).

Steven's attorney also argues that the motion to amend should be denied because Bruce did not include an affidavit by anyone with knowledge of the facts. Steven asserts that Bruce did not provide an affidavit because he waived annual trustee's commissions in an agreement of receipt and release...