In re Tompkins Cmty. Bank

• Decision Date: 16 April 2023
• Docket Number: s. 2013-663/O,2013-663/P,Nos. 2013-663/O
• Citation: 2023 NY Slip Op 23114
• Parties: In the Matter of Tompkins Community Bank (formerly known as Tompkins Trust Company), as Successor Trustee to the Marital Trust f/b/o Barbara Hurlbut Under the Last Will and Testament of Robert H. Hurlbut, Deceased.
• Court: New York Surrogate Court

2023 NY Slip Op 23114

In the Matter of Tompkins Community Bank (formerly known as Tompkins Trust Company), as Successor Trustee to the Marital Trust f/b/o Barbara Hurlbut Under the Last Will and Testament of Robert H. Hurlbut, Deceased.

Nos. 2013-663/O, 2013-663/P

Surrogate's Court, Monroe County

April 16, 2023

Bond Schoeneck & King, PLLC(Edward C Radin, Esq., Brian Laudadio, Esq., Kathleen H. McGraw, Esq. of counsel) for Tompkins Community Bank as Petitioner and Successor Trustee;

Pullano & Farrow(Christian Valentino, Esq.) for Robert Hurlbut as Respondent and Objectant; Harris Beach PLLC(Kelly S. Foss, Esq. and Kyle D. Gooch, Esq) for Christine OwenRespondent and Objectant.

CHRISTOPHER S. CIACCIO, S.

BACKGROUND

Robert H. Hurlbut passed away on March 4, 2013, survived by his spouse, Barbara Hurlbut, and two adult children, Robert W Hurlbut and Christine Owen.Article Fifth of the decedent's probated Will created a Marital Trust for the benefit of Barbara and letters of trusteeship were issued to Mary E. Ross and Jerald J. Rotenberg.By way of this Court's order dated May 20, 2020, the co-trustees were allowed to resign and, after having accounted for the period from March 4, 2013, to December 31, 2015, were discharged for that time period only.In that same order, the Court appointed Tompkins Trust Company(now known as Tompkins Community Bank) as successor trustee of the Marital Trust and letters of trusteeship were issued on June 26, 2020.

Tompkins Community Bank (hereinafter referred to as "Tompkins")petitions for the judicial settlement of its intermediate account for the period from June 26, 2020, through August 21, 2021, and for the allocation to the Marital Trust the Federal and New York estate tax due as a result of Barbara Hurlbut's passing together with incurred expenses relative to those estate tax filings.Additionally, Tompkins seeks advice and direction regarding a claim for repayment of legal fees by Robert W. Hurlbut, whether a 2014 Cadillac titled to Barbara Hurlbut is trust asset, and whether Tompkins should pursue as successor trustee the claims asserted by Christine Owen and Robert W. Hurlbut against each other in parallel proceedings before this Court.Tompkins also seeks approval of trustee commissions in the amount of $144,000 per annum (totaling $199,233 for the accounting period, $144,000 for 2019 and $55,233 for the period from January 1, 2020, through May 19, 2020) and payment of legal fees totaling $110,835.

Robert W. Hurlbut(hereinafter referred to as "Robert") filed objections to the account wherein he alleges the intermediate account cannot be accurate insofar as the former co-trustees never accounted from December 31, 2015, to June 26, 2020, when Tompkins assumed its role as successor trustee.Robert states the account does not adequately set forth or properly value various legal entities, such as RHH Mendon Properties, Inc. and ROHM Services Corporation that are either wholly or partially owned by the Marital Trust.He also alleges the account fails to include real property owned by the Trust and does not account for property taxes for certain parcels and overvalues another parcel located at 200 Sheldon Road, Honeoye Falls, New York by more than $200,000.Robert avers that the account does not disclose the impact of a Purchase and Sale Agreement he entered with his sister, Christine Owen, and its impact on promissory notes held by the Trust and the final distribution of the remainder, which is alleged to be a significant component of the Trust.Robert also avers the account fails to set forth the claims he has asserted against Christine Owen involving payments she received from the Marital Trust that allegedly could or should be pursued by Tompkins.Robert objects to the payment of annual commissions and alleges the legal fees sought by Tompkins are excessive and unreasonable and contends there should be no payment of outstanding commissions to the prior co-Trustees for their failure to pursue claims against his sister.

With regards to the advice and direction sought by Tompkins, Robert objects to the allocation of the estate tax expenses to the Marital Trust, he agrees that the 2014 Cadillac is an asset of the Estate of Barbara Hurlbut and asserts that Tompkins should pursue claims against Christine Owen for alleged excessive spending of Trust monies.Robert states he has repaid the Trust for the monies applied to his legal fees and there is no valid claim against him for those funds.Finally, he argues that the Tompkins should not be authorized to pursue claims against himself as those claims and allegation raised by his sister have no basis in law or fact.

Christine Owen(hereinafter referred to as "Christine") also filed objections to the interim account alleging it is inaccurate and/or incomplete insofar as it does not contain an accurate valuation of ROHM Services Corporation(which is wholly owned by the Trust) and does not account for proceeds from the sale of real property owned by the Trustat 21 Mendon Center Road, which was titled in the name of RHH Mendon, an entity owned by the Trust.

Regarding the advice and direction sought by Tompkins, Christine avers that Tompkins is duty bound as trustee to pursue legal claims against Robert, including those related to ROHM Services Corporation and sale proceeds from 21 Mendon Center Road.Christine also seeks to have the Tompkins recoup interest on Trust monies used by Robert to pay his legal fees.Christine consents the allocation of estate taxes and expenses as proposed by Tompkins, the exclusion of the Cadillac as a Trust asset, and approves the payment of commissions in the amount of $144,000, however she states payment of commissions to the former co-trustees is unwarranted and not properly before the Court.Additionally, Christine seeks the Court's direction that Tompkins forego the claims alleged against her by Robert as she argues they have already been rejected by this Court.

Tompkins has moved for an order granting summary judgment and dismissing the objections filed by Robert and Christine in their entireties and granting an order settling their intermediate account and the additional relief requested in their petition.

Both Robert and Christine have filed papers in opposition.In addition, Christine has cross moved for a stay of this proceeding, though no notice of motion was served.

DISCUSSION

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to demonstrate the absence of any material issues of fact.(Winegrad v New York Univ. Med. Center,64 N.Y.2d 851, 853;Zuckerman v City of New York,49 N.Y.2d 557, 562;Sillman v Twentieth Century-Fox Film Corp.,3 N.Y.2d 395, 404).Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.(Winegrad v New York Univ. Med. Center, supra, at p 853).Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.(Zuckerman v City of New York, supra, at p 562).Conclusory and unsubstantiated arguments are not sufficient to raise a triable issue of fact and will not defeat a motion for summary judgment.(In re Neuman, 14 A.D.3d 567[2d Dept2005]).However, the movant's proof must be scrutinized "in the light most favorable to the party opposing the motion".(Goldstein v County of Monroe,77 A.D.2d 232, 236[4th Dept.1980];Nojaim Bros. v Cna Ins. Co., 113 A.D.2d 109, 114[4th Dept1985]).

In an accounting proceeding, the party submitting the account has the ultimate burden of demonstrating that they have fully accounted for all of the assets belonging to a decedent's estate (seeMatter of Taylor,79 A.D.3d 766, 912 N.Y.S.2d 651[2010];Matter of Heino,73 A.D.3d 1062, 1063, 901 N.Y.S.2d 671[2010];Matter of Tract,284 A.D.2d 543, 727 N.Y.S.2d 148[2001]).Initially, it is not disputed that Tompkins met its prima facie burden with respect to the branch of its motion that sought summary judgment settling their accounting by submitting a verified accounting petition, a facially complete accounting and affidavits of the accounting parties(seeMatter of Crane, 100 A.D.3d 626, 628[2d Dept2012];Matter of Spiak, 208 A.D.3d 1482, 1484[3d Dept2022]).The Objectants bear the burden of coming forward with evidence to establish that the account is inaccurate or incomplete and upon satisfaction of that showing, Tompkins, as the accounting party, must prove, by a fair preponderance of the evidence, that its account is accurate and complete.(Matter of Heino, 73 A.D.3d at 1063, quotingMatter of Tract, 284 A.D.2d at 543;seeMatter of Campione, 58 A.D.3d 1032, 1034, 872 N.Y.S.2d 210[2009];Matter of Schnare, 191 A.D.2d at 860); (Matter of Taylor, 79 A.D.3d 766, 767[2d Dept2010]).

Both Robert and Christine, in a rare occasion of agreement in the context of several proceedings before this Court involving the Marital Trust, both argue the intermediate account is inaccurate and cannot be remedied until the prior co-trustees settle their own account for the four- and half-year period preceding Tompkins' appointment as successor Trustee.

Tompkins as successor trustee"is only responsible for the assets which come into his [or her] hands and has no particular legal duty to seek an accounting from his [or her] predecessors". (Pfeffer v Lehmann, 255 AD 220[2d Dept1938];Matter of William M. Kline Revocable Trust, 196 Misc.2d 66, 75, [Sur Ct, Fulton County2003]).However, a successor trustee, may be liable for failure to...