Danger v Combier

Danger v Combier 2009 NY Slip Op 06770 [66 AD3d 404] October 1, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Julia Danger, Appellant,
v
Elizabeth Combier, Respondent.

—[*1] Kenneth T. Wasserman, New York, for appellant.

Elizabeth Combier, respondent pro se.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 2, 2008, which, insofar as appealed from in this action for, inter alia, the conversion of monies from a trust, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

The complaint was properly dismissed since the action is barred by reason of the release that plaintiff executed in favor of both the trustee and defendant (her sister) that was contained in the instrument that settled the account of the subject trust, which had been established by the parties' maternal grandfather for the benefit of the parties' mother, with the remainder of the trust to be divided equally between the parties upon their mother's death (see D'Amico v First Union Natl. Bank, 285 AD2d 166, 173 [2001], lv denied 99 NY2d 501 [2002]). Furthermore, defendant neither controlled the trust nor determined how its assets were to be distributed. Concur—Tom, J.P., Andrias, Nardelli, DeGrasse and Freedman, JJ.