Rebell v. Trask

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BRACKEN
• Citation: Rebell v. Trask, 632 N.Y.S.2d 624, 220 A.D.2d 594 (N.Y. App. Div. 1995)
• Decision Date: 16 October 1995
• Parties: In the Matter of Harry REBELL, etc., Petitioner-Respondent, v. Ada Turkish TRASK, et al., Appellants, William Kasenetz, Respondent-Respondent.

Page 624

632 N.Y.S.2d 624

220 A.D.2d 594

In the Matter of Harry REBELL, etc., Petitioner-Respondent, v. Ada Turkish TRASK, et al., Appellants William Kasenetz, Respondent-Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 16, 1995.

Spizz & Cooper, Mineola (Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman [Stanley Harwood and Mitchell Gans], of counsel), for appellants.

Rosenman & Colin, New York City (Jeffrey L. Braun, Milton J. Kain, and Mark E. Greenfield, of counsel), for petitioner-respondent.

Before BRACKEN, J.P., and SULLIVAN, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding for the judicial settlement of a trustee's account, Ada Turkish Trask, Arthur Turkish, and Mitchell M. Gans appeal (1) from an order of the Surrogate's Court, Nassau County (Radigan, S.), dated November 2, 1994, which, inter alia, (a) granted the petitioner's motion for partial summary judgment vacating a settlement agreement between the petitioner and Ada Turkish Trask, the trust beneficiary, and (b) denied their cross motion for summary judgment determining that the settlement agreement is valid and that the petitioner is not entitled to receive any payment in excess of the $80,000 set forth therein, and (2) as limited by their brief, from so much of an order of the same court, dated March 2, 1995, as denied that branch of a motion by Ada Turkish Trask which was denominated as being for reargument and renewal but which was, in actuality, for reargument.

ORDERED that the appeal from so much of the order dated March 2, 1995, as denied that branch of the motion by Ada Turkish Trask which was for reargument is dismissed as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 2, 1994, is reversed, on the law, the petitioner's motion for partial summary judgment is denied, and the cross motion for summary judgment determining that the settlement agreement is valid and that the petitioner is not entitled to receive any payment in excess of the $80,000 set forth therein is granted; and it is further,

ORDERED that the appellants are awarded one bill of costs.

The petitioner Harry Rebell is the only surviving trustee of a trust established for the benefit of the appellant Ada Turkish Trask. It is undisputed that pursuant to its terms, the trust terminated upon the death of another trustee, Samuel Cohen, in 1985. However, when Rebell and former co-trustee William Kasenetz sought to render an accounting, Trask objected and alleged that the trustees had breached their fiduciary duties. Following extensive litigation, Rebell and the appellants entered into a settlement agreement in May 1988. The agreement provided, inter alia, that Rebell would receive the sum of $80,000 from the trust in full satisfaction of his claims for commissions and legal fees, whereupon the parties would execute general releases in favor of each other. The agreement also required Rebell to "take all necessary and appropriate action to see that all the proceeds remaining on hand in the * * * trust, after payment to him of the [$80,000] * * * are distributed as soon as is reasonably possible to * * * Trask". Closing of the agreement could be adjourned "for such additional time as may be necessary to cause the Trustees [i.e., Rebell and Kasenetz] to issue a check for $80,000 to Rebell, provided further that Trask agrees to take all necessary and appropriate action to cause the Trustees to make the said payment to Rebell".

Disputes subsequently erupted among Rebell, Kasenetz, and Trask, and Kasenetz allegedly refused to consent to release the proceeds of the trust to Trask. Rebell then commenced a proceeding to resign as trustee and to require payment of the $80,000 settlement sum to him. The Supreme Court, Nassau County (Collins, J.), ultimately granted Rebell's request on the condition, inter alia, that he render a final account reflecting the distribution to Trask of all trust proceeds, less the $80,000 payable to Rebell. Rebell subsequently moved for renewal, contending that he was unable to render a final account or distribute the trust proceeds to Trask because Kasenetz would not consent thereto. The application was dismissed on procedural grounds.

Additional trust-related litigation ensued between the parties. Rebell then commenced the instant proceeding for a voluntary accounting and to set aside the 1988 settlement agreement so that he could pursue a claim for fees and commissions in excess of $80,000. He thereafter moved for partial summary judgment vacating the settlement agreement, contending that the purpose of the agreement had been frustrated by the refusal of Kasenetz to consent to the distribution of the trust proceeds to Trask and that Trask had breached her obligations under the agreement by refusing to consent to the payment of the $80,000 sum set forth in the agreement. Trask, Arthur Turkish (her son), and Mitchell M. Gans (an attorney) cross-moved for summary judgment determining that the settlement agreement was valid and that Rebell's payment was thereby limited to $80,000.

The Surrogate granted Rebell's motion and denied the cross motion, finding that under the terms of the settlement agreement, Rebell was entitled to payment of the $80,000 sum before any distribution of the trust proceeds to Trask occurred, that Trask had breached the agreement by refusing to approve the payment, and that Rebell was therefore entitled to have the agreement set aside and to seek recovery of all fees and commissions as if the settlement agreement had never existed. We now reverse.

"Stipulations of settlement are essentially contracts and will be construed in accordance with contract principles and the parties' intent" (Serna v. Pergament Distribs., 182 A.D.2d 985, 986, 582 N.Y.S.2d 550). Hence, when an agreement between parties is clear and unambiguous on its face, it will be enforced according to its terms and without resort to extrinsic evidence (see, W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639). In the instant case, the Surrogate erred in determining that the agreement...