East 29 Assoc. v Little

Matter of Rad 2007 NY Slip Op 02478 [38 AD3d 388] March 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

In the Matter of the Application for Turnover of Partnership Interests Owned by Abraham Rad, Deceased. In the Matter of the Application to Remove the Trustee of a Trust Created by Abraham Rad, as Grantor, Under an Agreement dated 6/1/89. East 29 Associates et al., Appellants; Jeffrey Little, Respondent.

—[*1] Feder, Kaszovitz, Isaacson, Weber, Skala, Bass & Rhine LLP, New York (Ezio Scaldaferri of counsel), for appellants.

Heller, Horowitz & Feit, P.C., New York (Martin Stein of counsel), for respondent.

Order, Surrogate's Court, New York County (Renee Roth, S.), entered September 15, 2006, which granted respondent trustee's motion to dismiss appellants' petition to remove him, and denied appellants' motion to renew a prior order directing appellants to turn over to the trustee the decedent's interest in certain funds of appellant partnership, unanimously affirmed, with costs.

Appellants' claim that the turnover proceeding was jurisdictionally defective because unpaid creditors of the estate were not made parties thereto is improperly raised for the first time on appeal, and we decline to consider it. In any event, appellants' previous consent to the turnover of partnership funds, albeit on condition that it be subject to provisions of the partnership agreement, judicially estops them from challenging the turnover now. Nor do [*2]appellants show that the trustee's appointment was in violation of the trust instrument or that he is unfit to serve. We have considered and rejected appellants' other arguments. Concur—Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.