Tsavaris v Tsavaris

Tsavaris v Tsavaris 2012 NY Slip Op 02404 Decided on March 29, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 29, 2012
Tom, J.P., DeGrasse, Freedman, Richter, Román, JJ.
7237 103246/11

[*1]Arthur F. Tsavaris, etc., Plaintiff-Appellant,

v

Frank G. Tsavaris, et al., Defendants-Respondents.




Scoppetta Seiff Kretz & Abercrombie, New York (Eric A.
Seiff of counsel), for appellant.
Jeffrey I. Baum & Associates, P.C., Garden City (Jeffrey I.
Baum of counsel), for respondents.

Order, Supreme Court, New York County (Louis B. York, J.), entered October 7, 2011, which, to the extent appealable, denied plaintiff's motion for renewal of a prior motion to remove defendants from their positions as co-trustees of the Josephine Tsavaris Irrevocable Trust, unanimously affirmed, without costs. Appeal from the foregoing order, to the extent it denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff's claim that he did not know that the basement unit in the building owned by the trust had been rented, allegedly in violation of the trust agreement, does not constitute "reasonable justification" for his failure to present that fact on the prior motion, given his role as a fiduciary and his unfettered access to the building (see CPLR 2221[e]; Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]). In any event, the motion court correctly found that the "new" evidence would not have changed the prior determination. The act of renting the unit did not constitute a breach of loyalty to the trust (see Matter of Duke, 87 NY2d 465, 471-472, 475-476 [1996]).

The denial of a motion to reargue is not appealable (Prime Income Asset Mgt., Inc. v American Real Estate Holdings L.P., 82 AD3d 550, 551 [2011], lv denied 17 NY3d 705 [2011]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 29, 2012

CLERK