Salanitro Family Trust v Gorina

[*1] Salanitro Family Trust v Gorina 2015 NY Slip Op 51785(U) Decided on December 2, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2014-1095 K C

Salanitro Family Trust, Respondent,

against

Yelena Gorina, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), dated May 9, 2014. The order, insofar as appealed from, in effect, upon reargument, adhered to a prior order of the same court dated March 20, 2014, granting petitioner's motion for summary judgment in a holdover summary proceeding.

ORDERED that the order, insofar as appealed from, is reversed, without costs, upon reargument, petitioner's motion for summary judgment is denied, and, upon a search of the record, the petition is dismissed.

This holdover summary proceeding was brought in the name of petitioner, an express trust (see EPTL 7-2.1 [a]). Petitioner moved for summary judgment, which motion was granted by order of the Civil Court dated March 20, 2014. Tenant then moved for leave to reargue or renew her opposition to petitioner's motion, and argued, among other things, that the "trust cannot act against this respondent and the proceeding should be dismissed." By order dated May 9, 2014, the Civil Court, in effect, upon reargument, adhered to its prior order granting petitioner's motion for summary judgment. On appeal, tenant contends, among other things, that only a trustee, not a trust, can commence a proceeding.

Pursuant to EPTL 7-2.1 (a), "an express trust vests in the trustee the legal estate." While EPTL 7-2.1 (c) enumerates certain types of trusts which may acquire title in the name of the trust, none of these exceptions are applicable herein. As legal title of petitioner is in the trustee, only the trustee can sue or be sued in a court of law (see CPLR 1004; Matter of Straut, 126 NY 201 [1891]; Ronald Henry Land Trust v Sasmor, 44 Misc 3d 51 [App Term, 2d, 11th & 13th Jud Dists 2014]). In the case at bar, it is uncontroverted that the trustee named in the trust agreement not only failed to sign the trust agreement, he also did not commence, or appear in, the instant proceeding. Consequently, upon reargument, petitioner's motion for summary judgment should have been denied and the petition should have been dismissed.

Accordingly, the order, insofar as appealed from, is reversed, petitioner's motion for summary judgment is denied, and, upon a search of the record, the petition is dismissed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: December 02, 2015