Connery v Sultan

Connery v Sultan 2015 NY Slip Op 04750 Decided on June 4, 2015 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 June 4, 2015
Tom, J.P., Sweeny, Moskowitz, DeGrasse, Richter, JJ.
15317 401336/05

[*1] Stephane Cosman Connery, et al., Plaintiffs-Respondents,

v

Burton S. Sultan, Defendant-Appellant.

Burton S. Sultan, appellant pro se.

Jacobs & Burleigh LLP, New York (Zeynel M. Karcioglu of counsel), for respondents.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 28, 2014, which denied defendant's motion seeking vacatur of a judgment (same court and Justice), entered December 3, 2012, pursuant to CPLR 5015(a)(3) and (4); dismissal of the complaint pursuant to CPLR 3211(a)(1), (2), (3) and (7); leave to amend the answer pursuant to CPLR 3025(b) to assert an affirmative defense of lack of standing or capacity to sue; and sanctions pursuant to CPLR 8303-a and 22 NYCRR § 130-1.1(a), unanimously affirmed, without costs.

Contrary to defendant's argument, a trustee may maintain an action against another "as he could maintain if he held the trust property free of trust" (Restatement [Second] of Trusts § 280). "It is unnecessary for the trustee in the pleadings or other proceedings to describe himself as trustee. He can proceed in the action as though he were the owner of the claim which he is enforcing. If he does describe himself as trustee the description is treated as mere surplusage" (id., Comment h; see Gerel Corp. v Prime Eastside Holdings, LLC, 12 AD3d 86, 95 n3 [1st Dept 2004]; Haag v Turney, 240 AD 149, 150-151 [1st Dept 1934]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 4, 2015

CLERK