Matter of Jensen v Jensen
Annotate this CaseDecided on May 16, 2016
Supreme Court, Sullivan County
In the Matter of the Application of Thomas E. Jensen and Ellen E. Blasi, Petitioners for a Judgment Pursuant to Article 77 of the Civil Practice Laws and Rules, Petitioners,
against
Anne M. Jensen, Individually and as Trustee of the Jensen Revocable Trust Dated January 12, 1999, Respondent.
2406-2005
Thomas E. Jensen
Pro se Petitioner and Objectant
[address redacted]
Anne M. Jensen
Pro se Respondent and Trustee
[email redacted]
Ellen Blasi
Pro se Beneficiary
[address redacted]
Frank J. LaBuda, J.
Pro se respondent and beneficiary, Anne M. Jensen, as Trustee, seeks to judicially settle the trust that was established by her parents known as the Jensen Revocable Trust pursuant to Article 77 of the CPLR. The respondent filed a Final Accounting for the Jensen Revocable Trust for the period of December 29, 2004 through January 31, 2015. Respondent alleges all assets have been accounted for, all expenses paid and all remaining assets have been liquidated and distributed in equal shares to the three beneficiaries as the children of Erland and Eleanor Jensen. The accounting was prepared by Robert W. Schultz, CPA.
Pro se beneficiary, Ellen Blasi consents to and accepts the account of the Trustee. On September 4, 2015, pro se petitioner, beneficiary and objectant, Thomas Jensen, filed a [*2]memorandum that the Court will consider as an objection to the account of the Trustee. A hearing was held on all remaining issues in this matter on September 4 and September 11, 2015.
On January 12, 1999, Erland A. Jensen and Eleanor M. Jensen, as husband and wife, executed the Jensen Revocable Trust. The parties in this action, Thomas E. Jensen, Ellen E. Blasi and Anne M. Jensen are the children of Erland and Eleanor Jensen and the equal beneficiaries of the Jensen Revocable Trust.
Erland Jensen predeceased his wife in 2002. Eleanor Jensen died on December 29, 2004 a resident of Sarasota County, Florida. Eleanor Jensen's Last Will and Testament was admitted to probate in Florida and Anne M. Jensen was granted Letters of Administration. The residuary clause of the Will devised all estate assets to the Jensen Revocable Trust. As Administratrix, Anne Jensen took possession of all estate assets and transferred them to the Florida Jensen Revocable Trust. Anne Jensen was the named Trustee of the Jensen Revocable Trust. In time, the Trust assets were liquidated or sold including real property located at 110 Proctor Road, Eldred, New York, which was the only New York State asset in this Florida estate.
This proceeding has been subject to much litigation resulting in two appeals to the Appellate Division, Third Department: In re Jensen, 39 AD3d 1136 [3rd Dept. 2007] and In re Jensen, 107 AD3d 1222 [3rd Dept. 2013]. In 2005, the petitioner commenced this action seeking an account from the Trustee and to compel the distribution of Trust assets. Initially, Ellen E. Blasi was a petitioner in this proceeding. Subsequently, Ms. Blasi withdrew as petitioner and now consents to the application of Anne Jensen as Trustee to judicially settle the trust accounting.
Petitioner objects to the account and claims the Trustee failed to properly account; was negligent; breached her fiduciary duty; was impartial and guilty of self-dealing. It appears the petitioner does not accept that the Sullivan County property was sold for a price that he believes was unacceptable.
The Trustee alleges she hired several real estate brokers to sell the property since 2005. The Trustee maintains there was some interest in the house and she received three offers that ranged from $120,000 to $200,000 which were rejected. The Trustee claims the property had been rented since 2008 as the value of real property in Sullivan County had collapsed.
From 2005 to 2009, the Trustee obtained several appraisals that valued the property between $232,000 in 2005 to $161,000.00 in 2009. In 2005, the petitioner alleges his sister Ellen Blasi offered to purchase the property for $269,000.00. The Trustee obtained an appraisal in August 2011 which valued the property at $164,000.00.
In 2011, the Trustee maintains she and her sister proposed to purchase the property for $150,000.00 in order to finalize the trust proceeding. In a Decision and Order dated February 1, 2012, this Court granted the Jensen sisters permission to purchase the property and valued the property at $164,000.00. This Court directed that when the property was sold, $54,666.66 was to be deposited in the trust representing the petitioner's share. Petitioner appealed the Decision and Order of this Court. On April 16, 2013, the Appellate Division, Third Department affirmed the decision of this Court. See, In re Jensen, 107 AD3d 1222 [3rd Dept. 2013].
Thereafter, the Jensen sisters failed to purchase the property. Instead, they sold the property to a third party. The closing took place on April 30, 2013. The Trustee offered the HUD-1 Settlement Statement as proof that the property was sold. The purchase price was [*3]$132,870 with a seller's concession of $3,870.00 resulting in a net purchase price of $129,000.00. After the payment of expenses and other closing costs, the trust netted $109,319.83 from the sale.
On December 12, 2013, the Trustee sent the petitioner a letter which indicated that since he did not respond to her letter of May 12, 2013, she had concluded the trust administration in the State of Florida and enclosed a check in the amount of $25,559.87 representing the final distribution. At the hearing in this Court, in September, 2015, the petitioner admitted that he received the check and cashed it with "reservation of rights." The account indicates that since 2005 the petitioner received $273,273.84 from the trust. The petitioner alleges he is owed $119,632.65 with interest in the amount of 9% for a total due him of $308,703.24
After a review of the record, it appears the petitioner is upset that the Sullivan County property did not sell for $269,000.00 in 2005 or for $164,000.00 in 2012. The petitioner alleges that the Trustee mismanaged the property and that the property should have generated a greater sales price. It appears the petitioner seeks to establish that he is entitled to a portion of the higher price of $269,000.00 versus what was realized at the sale in April 2013. The Court is mindful that the real estate market in Sullivan County, New York from 2005 to 2012 was, at best, stagnant, and in reality completely collapsed.
Article 77 of the CPLR authorizes the institution of a special proceeding in the Supreme Court for the determination of matters relating to all types of express trusts, involving inter vivos and testamentary trusts. Chiantella v. Vishnick , 84 AD3d 797 [2nd Dept. 2011]. An essential element of a trust is accountability of the trustee for its administration. Application of Kassover, 124 Misc 2d 630 [1984]. A trustee has a duty to keep proper and accurate accounts and must render a full and accurate account of all transactions. Matter of Iannone's Estate, 104 Misc 2d 5 [1980].
The Trustee bears the primary burden of making a prima facie showing that the assets under her charge have been fully accounted for. The burden shifts to the objectant to produce credible evidence that the accounting is incomplete or inaccurate. In re McCaffrey's Will, 147 Misc 179 [1933]. Only when this burden is met, does the burden shift again to the Trustee to prove by a fair preponderance of the evidence that the account is accurate and complete. In re Heino, 73 AD3d 1062 [2nd Dept. 2010]. "The determination of whether the conduct of a trustee measures up to the appropriate standards of prudence, vigilance and care, is a fact to be found by the trial court." Matter of Donner, 82 NY2d 574 [1993].
Since all of the parties in this proceeding are self- represented, the Court will disregard insignificant mistakes, omissions, defects or irregularities as allowed by CPLR §2001. Grskovic v. Holmes, 111 AD3d 234 [2nd Dept. 2013].
After a review of the record, the Court concludes the objections of the petitioner were not supported by evidence showing, prima facie, that the respondent's accounting was inaccurate or incomplete as the burden of coming forward with countervailing evidence never shifted to the respondent and the objections were properly dismissed. Schulman v. Levy, Sonet & Siegel, 302 AD2d 321 [1st Dept. 2003]; In re Estate of Curtis, 16 AD3d 725 [3rd Dept. 2005]. The Trustee made out a prima facie case that her account was accurate and complete by submitting the final account, and several affidavits along with her testimony at the September 2015 hearings.
The objectant failed to carry his burden of coming forward with any evidence showing the inaccuracy of the account. In re Rudin, 34 AD3d 371 [1st Dept. 2006]. The allegations of the [*4]objectant are conclusory and not supported by the record. The objectant has failed to demonstrate that the trust assets were unaccounted for or undervalued. In re Taylor, 79 AD3d 766 [2nd Dept. 2010]. The Trustee has proven by a fair preponderance of the evidence, that her account is accurate and complete. Matter of Carbone, 101 AD3d 866 [2nd Dept. 2012].
The Court has reviewed the objectant's remaining contentions and concludes they either lack merit or are unpersuasive given the Court's determination. Hubbard v. County of Madison, 71 AD3d 1313 [3rd Dept. 2010].
The Trustee maintains all trust assets have been fully distributed to the three trust beneficiaries. This Court finds the Trustee has fully accounted to all interested persons to the Jensen Revocable Trust and the account is therefore judicially settled. The Court hereby discharges Anne M. Jensen as the Trustee and the sureties on its bond, if any, from any further liability to the persons interested. See, CPLR §7706.
Based on the foregoing, it is therefore,
ORDERED, that the petitioner's, Thomas E. Jensen's, objections are dismissed, with prejudice; and it is further
ORDERED, that the respondent has fully accounted to all interested persons to the Jensen Revocable Trust; and it is further
ORDERED, that the Jensen Revocable Trust is hereby judicially settled; and it is further
ORDERED, that the Court hereby discharges Anne M. Jensen as the Trustee and the sureties on its bond, if any, from any and all further liability to the persons interested.
This shall constitute the Decision and Order of this Court. The original Decision and Order and all other papers are being delivered to the Sullivan County Clerk for entry. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2200. Respondent must serve Notice of Entry in accordance with the CPLR.
DATED: May 16, 2016
Monticello, New York
Hon. Frank J. LaBuda
Acting Justice Supreme Court
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