Wie v. Wie, 2021-51126

CourtNew York Surrogate Court
Writing for the CourtHON. TIMOTHY P. MCELDUFF, JR. JUDGE
PartiesIn the Matter of the Application of Stephen Van Wie, as Trustee of the Helen S. Van Wie Irrevocable Trust, Petitioner, v. Barbara Van Wie and Frank Perricone, Respondents, for an Order enforcing the Stipulation of Settlement dated November 3, 2016 and Decree of this Court dated December 8, 2016. Proceeding for the Judicial Settlement of the Interim Account of Barbara Van Wie, Beneficiary of the Estate of Helen Van Wie, Deceased. In the Matter of the Accounting by Stephen Van Wie, As the Trustee of the Estate of Helen S. Van Wie, Deceased.
Decision Date18 November 2021
Docket Number2021-51126,K; 2016-508/I,H; 2016-508/F,K,File 2016-508/C

In the Matter of the Application of Stephen Van Wie, as Trustee of the Helen S. Van Wie Irrevocable Trust, Petitioner,
v.

Barbara Van Wie and Frank Perricone, Respondents, for an Order enforcing the Stipulation of Settlement dated November 3, 2016 and Decree of this Court dated December 8, 2016.

Proceeding for the Judicial Settlement of the Interim Account of Barbara Van Wie, Beneficiary of the Estate of Helen Van Wie, Deceased. In the Matter of the Accounting by Stephen Van Wie, As the Trustee of the Estate of Helen S. Van Wie, Deceased.

No. 2021-51126

File Nos. 2016-508/C, H; 2016-508/F, K; 2016-508/I, K

Surrogate's Court, Orange County

November 18, 2021


Unpublished Opinion

Brian M. Newman, Esq. and Raymond P. Raiche, Esq. for Respondents/Petitioner Barbara Van Wie

Stephen Van Wie, Petitioner/Respondent Pro Se

HON. TIMOTHY P. MCELDUFF, JR. JUDGE

The Court received and considered the following submissions in connection with Barbara Van Wie's application by Order to Show Cause, returnable on October 1, 2021, seeking modification of this Court's Decision and Order dated December 1, 2020, which had decided the fee application of prior counsel for Stephen Van Wie, Keane & Beane, P.C.:

1. Affirmation of Brian Newman, Esq., together with Exhibits A through D, filed on August 5, 2021; and
2. Affirmation of Legal Services, together with Exhibit A filed on August 5, 2021

Additionally, the Court received and considered the following submissions in connection with Barbara Van Wie's application by Order to Show Cause, returnable on October 1, 2021, to fix the compensation of her attorney in these proceedings:

1. Verified Petition to Determine Legal Fees filed on August 6, 2021; and
2. Affirmation of Legal Services, together with Exhibit A filed on August 6, 2021

Background

Barbara Van Wie (hereinafter "Barbara") and Stephen Van Wie (hereinafter "Stephen") are the beneficiaries of the Helen Van Wie Irrevocable Trust and the Estate of Helen Van Wie, their deceased mother. The main asset of Trust was the Decedent's home. The parties' dispute began with the terms of the Trust, specifically, whether or not a Fourth Amendment to the Trust (which effectively disinherited Stephen) was valid. The Fourth Amendment was ultimately invalidated. The dispute then became selling the Decedent's home, which was occupied by Barbara and her boyfriend. The dispute over the home has spawned twelve, separate proceedings/subfiles in this Court since 2016.

By Decision and Order dated April 9, 2020, this Court decided a motion for summary judgment, finding issues of fact in File No. 2016-508/C, which set that subfile, as well as subfiles A, B, F and I, on a course for trial.

By Decision and Order dated May 8, 2020, this Court granted Keane & Beane, P.C.'s motion to withdraw as counsel for Stephen. Thereafter, Keane & Beane, P.C. submitted its application for approval of its attorney's fees and costs, which was contested by Barbara. In a detailed Decision and Order dated December 1, 2020, this Court approved the vast majority of Keane & Beane, P.C.'s fees and costs and, further, allocated responsibility for payment of the same between Stephen, Barbara and the Trust under applicable law.

By Scheduling Order dated July 21, 2020, this Court joined the remaining pending proceedings for trial and directed Stephen and Barbara to file long-outstanding items by August 12, 2020. Stephen failed to comply.

By Conditional Order dated September 23, 2020, this Court set a new, extended schedule of filing deadlines and ordered that Stephen's right to amend his accounting and his right to object to Barbara's accounting would be deemed waived if said amendment and objection were not filed by September 30, 2020.

On September 29, 2020, Stephen retained new counsel, Corbally, Gartland and Rappleyea, LLP ("CGR"), who requested an extension of time to comply with the Court's Conditional Order. The Court granted CGR an additional two weeks of time to comply. Ultimately, CGR complied with the extended filing deadline.

Not long thereafter, however, CGR filed an application to be relieved as counsel due to Stephen's alleged failure to cooperate and irretrievable breakdown in the attorney-client relationship. Stephen failed to submit any opposition to CGR's application and failed to appear on the return date. By Decision and Order dated April 8, 2021, this Court granted CGR's application to be relieved as counsel and, therein, provided Stephen time to retain new counsel, scheduled a pre-trial conference date, a trial submission calendar and a virtual bench trial date. Additionally, the Decision and Order warned the parties that failure to appear at the pre-trial conference could result in an order of default, dismissal or other such order pursuant to 22 NYCRR 207.27.

Subsequently, Stephen failed to appear at the May 14, 2021 pre-trial conference without excuse. As a result, Barbara moved to hold Stephen in default. The Court granted Barbara's motion, declared Stephen in default, dismissed certain proceedings and objections and ordered Barbara to proceed to inquest on the remaining proceedings on scheduled trial date of May 21, 2021. Specifically, Barbara's burden at trial was to establish her Petition to account as trustee for the period of March 30, 2016 through September 30, 2019 [File No. 2016-508/F] and to establish her Objections to the final accounting of Petitioner Stephen Van Wie as trustee for the period of May 12, 2017 through October 14, 2020 [File No. 2016-508/I].

Stephen failed to appear at the inquest on May 21, 2021. Barbara appeared and submitted her proof. At the close of the inquest, the Court directed counsel for Barbara to submit a proposed, final Decree to close File Nos. 2016-508 F and I.

Stephen has never sought to vacate his default(s).

Barbara has not yet submitted a proposed Decree.

Instead, Barbara now moves, by Order to Show Cause, to modify the Court's prior Decision and Order dated December 1, 2020 [entered in File Nos. 2016-508/C, H] for the purposes of (1) changing the allocation of responsibility for payment of Keane & Beane, P.C.'s attorney's fees as between Barbara, Stephen and the Trust and (2) imposing sanctions upon Stephen for frivolous conduct. Barbara's application is unopposed.

Additionally, Barbara now moves, by Order to Show Cause, to fix the compensation of her attorney for services rendered in the accounting proceedings [File Nos. 2016-508/F, I] under File No. 2016/K. This application is also unopposed. [1]

Analysis

A. Modification of the Court's prior Decision and Order dated December 1, 2020.

The Court's prior Decision and Order dated December 1, 2020 directed that, of the $59, 756.91 in fees/costs awarded to Keene & Beane, P.C., (1) responsibility for payment of the amount of $17, 611.70 shall be allocated to and paid from Stephen Van Wie personally, (2) responsibility for payment of the amount of $25, 043.03 is be allocated to and paid from Barbara Van Wie's beneficial share of the trust and (3) payment of the amount of $17, 102.18 shall be payable from the trust corpus generally.

Barbara now seeks to re-allocate the responsibility for payment of attorney's fees due to the fact that Stephen's claims were ultimately dismissed upon his default. Specifically, Barbara seeks to re-allocate the responsibility for paying these fees by (1) making Stephen personally responsible to pay $19, 440.15 of the previous $25, 043.03 assessed against Barbara's beneficial share of the Trust and (2) making Stephan responsible to pay $8, 451.30 of the previous $17, 102.18 assessed against the Trust corpus.

Presumably, Barbara's application is made pursuant to CPLR § 2221 ("Motion affecting prior order"), particularly, CPLR § 2221(e), a motion for leave to renew. However, Barbara's application fails to comply with the procedural requirements of CPLR §§ 2221(e)(1), in that it is not specifically identified as a motion to renew. More importantly, however, Barbara's motion fails to offer new facts that would change the prior determination, as explained below. See CPLR § 2221(e)(2).

Barbara argues that the dismissal of Stephen's proceeding to enforce the terms of the parties' Stipulation of Settlement [File No. 2016-508/C] has resulted in no gain or benefit to the Trust/Estate, and thus, Stephen should now be responsible to pay $19, 440.15 of the previous $25, 043.03 assessed against Barbara's beneficial share of the Trust. Barbara is mistaken, however, in that the $25,...

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