Matter of Rosenthal

Matter of Rosenthal 2012 NY Slip Op 06900 Decided on October 16, 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 October 16, 2012
Tom, J.P., Mazzarelli, Andrias, DeGrasse, Román, JJ.
8320N 2968/07

[*1]In re Alvin Rosenthal, et al., File

The American Society for the Prevention of Cruelty to Animals, et al., Proposed Interveners-Appellants, David Panzirer, et al., Respondents-Respondents.


McDermott Will & Emery LLP, New York (Henry Christensen
III of counsel), for The American Society for the Prevention of
Cruelty to Animals, appellant.
Arnold & Porter LLP, New York (Charles G. Berry of
counsel), for The Humane Society of the United States and Maddie's
Fund, appellants.
Ronald S. Rolfe, New York, for David Panzirer, Walter
Panzirer, Sandor Frankel and John Codey, respondents.
Eric T. Schneiderman, Attorney General, New York (Leslie B.
Dubeck of counsel), for Attorney General, respondent.

Order, Surrogate's Court, New York County (Nora Anderson, S.), entered April 15, 2011, which, insofar as appealed from, denied the motion by The Humane Society of the United States, Maddie's Fund, and The American Society for the Prevention of Cruelty to Animals (collectively, movants) to intervene in the Surrogate's Court proceeding, for a construction under SCPA 1420 and 2101, and to vacate a prior Surrogate's Court order entered February 19, 2009, unanimously affirmed, without costs.

There is no merit to movants' assertion that the Surrogate lacked the jurisdiction to decide the trustees' petition in the proceeding underlying this application. On the contrary, the Surrogate's Court's jurisdiction encompasses all matters that affect the affairs of a decedent (Matter of Piccione, 57 NY2d 278, 287 [1982]). Thus, there is no basis to vacate the order underlying movants' application.

Turning to the merits of the application, we find that Surrogate's Court acted well within its discretion to deny movants' motion to intervene under either CPLR 1012 or 1013 (see Matter of Pace-O-Matic, Inc. v New York State Liq. Auth., 72 AD3d 1144 [3d Dept 2010]; see also State of New York v Philip Morris Inc., 269 AD2d 268 [1st Dept 2000].

First, with respect to a trust, under EPTL 8-1.1(f), only the Attorney General may enforce the trust provisions insofar as the beneficiaries are concerned (see Alco Gravure, Inc. v Knapp Found., 64 NY2d 458, 465-66 [1985]; see also Board of Educ. of Mamaroneck Union Free School Dist. v Attorney General of State of N.Y., 25 AD3d 637, 638-39 [2d Dept 2006], lv denied [*2]7 NY3d 807 [2006]). This status is conferred upon the Attorney General even if, as here, his position does not necessarily comport with that
of the charitable entities (Matter of Notkin, 45 AD2d 849, 850 [2d Dept 1974]; see also Matter of May, 213 AD2d 838, 839-840 [3d Dept 1995], lv dismissed 85 NY2d 1032 [1995]). Second, movants cannot fulfill the requirement under CPLR 1012 that the judgment may adversely affect their interests (Matter of Rapoport, 91 AD3d 509 [1st Dept 2012]; see also Matter of Vaughn, 267 AD2d 763, 763-764 [3rd Dept 1999]). As a result, movants lack standing to intervene. Nor do movants fall within an exception to the general standing rule, as they are not within a class of potential beneficiaries that is "sharply defined and limited in number" (Alco Gravure, 64 NY2d at 465, citing Restatement [Second] of Trusts § 391, Comment c [1959]). For both these reasons, movants lack standing to intervene.

In light of our conclusions, we need not address the parties' remaining contentions.

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

ENTERED: OCTOBER 16, 2012

CLERK