Matter of Homelsky
Annotate this CaseDecided on December 18, 2009
Sur Ct, Nassau County
Accounting of Bruce H. Belsky, Miriam Belsky and Gloria Gilson, as Executors and Trustees of the Trust Under the Last Will and Testament of Frank Homelsky, Deceased.
199852
Jaspan Schlesinger Hoffman LLP
Petitioner
300 Garden City Plaza
Garden City, New York11530
Kurzman Eisenberg Corbin & Lever LLP
Objectant
1 North Broadway
White Plains, New York11601
John B. Riordan, J.
In this contested accounting proceeding, petitioner, Bruce Belsky, moves for an order permitting him to amend the final accounting to include trustee's commissions to which he alleges he is entitled. Respondent, Steven Lever, opposes the motion. For the reasons that follow, the motion is granted
The decedent, Frank Homelsky, died on May 6, 1979, a resident of Nassau County. His will and a codicil thereto were admitted to probate by decree dated May 25, 1979. The will nominates the decedent's two daughters, Miriam Belsky and Gloria Gilson, and his grandson, Bruce H. Belsky, as co-executors and co-trustees of the trust created under Article FIFTH of the will. Letters testamentary and letters of trusteeship issued to them. The income beneficiaries of the Article FIFTH trust are the decedent's two daughters and Julia Homelsky, the decedent's spouse, who died only a few months after the decedent. The remaindermen of the trust are the decedent's grandchildren, Bruce H. Belsky, Mark Belsky, Steven Lever and Ellen Lever. Steven filed objections to the account.
According to his attorney, Bruce is seeking leave to amend the account to include two-thirds
trustee's commissions chargeable to principal due to Bruce for the period of the account as
shown on the amended affidavit of Stephen B. Hand, sworn to on June 17, 2009. The
total amount of these commissions is claimed to be $183,602.00.[FN1]
[*2]
Steven's counsel correctly points out that Bruce's moving papers do not contain a copy of the proposed amended petition as is required in a motion made pursuant to CPLR 3025 (b) (amendments to pleadings with leave of court). However, it is this court's practice to allow petitions for accountings to be amended by affidavit, and a copy of the amended affidavit amending accounting is annexed to Bruce's moving papers. The affidavit provides Steven with all of the pertinent information that would be contained in an amended petition.
"Motions for leave to amend pleadings should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient" (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27 [2d Dept 2008] [citations omitted]). Neither is the case here. The fact that Bruce did not ask for the commissions at issue in the petition or account does not constitute a waiver of them. "A waiver is an intentional abandonment or relinquishment of a known right. It is essentially a matter of intention. Negligence, oversight or thoughtlessness does not create it" (Matter of Sillman, 82 Misc 2d 736, 738 [Sur Ct, New York County 1975]. Even if Bruce were deemed to have voluntarily waived these commissions, such a waiver may be withdrawn (Matter of Grace, 61 Misc 2d 51, 58 [Sur Ct, Nassau County 1970]; Matter of Grace Candis Parris, NYLJ, May 17, 2005, at 32, col 2 [Sur Ct, Kings County]).
Steven's attorney also argues that the motion to amend should be denied because Bruce did not include an affidavit by anyone with knowledge of the facts. Steven asserts that Bruce did not provide an affidavit because he waived annual trustee's commissions in an agreement of receipt and release that Bruce executed on November 15, 2006. Annexed to Steven's papers in opposition to the motion is a copy of an agreement of receipt and release executed by Bruce on November 15, 2006. Paragraph 4 of the agreement states, "The Executors and Trustees waive all executor and trustees [sic] fees for the Accounting Period except for the executors [sic] fees paid to Bruce H. Belsky, Esq. as set forth in the Accounting." The copy of the agreement is signed by Bruce, as executor, trustee and remainderman, and by another of the accounting parties, Miriam Belsky, as income beneficiary, executor and trustee.[FN2] However, the copy is not signed by Gloria, Mark, Ellen or by Steven, and Steven specifically avers that he never signed the agreement.
The agreement states that it is made to settle the account without the need for a formal judicial proceeding. Since not all of the interested parties signed the agreement, Bruce and his co-trustees had to commence a proceeding to have the account judicially settled, and when they did, Steven filed objections to its settlement. Under these circumstances, Steven's argument that Bruce should be held to the terms of the agreement for which he received no consideration is unavailing.
Steven also asserts that Bruce is not entitled to seek trustee's commissions because he failed
to provide to the beneficiaries on an annual basis the statement required by SCPA 2309 (4), and
Steven has filed an affidavit from Gloria that states that she never received annual
[*3]
statements from Bruce or from any other person
in connection with the subject trust. However, Bruce is not seeking the commissions chargeable
to the income beneficiaries' income interest.
Finally, Steven argues that the court should exercise its equitable powers and estop Bruce from seeking receiving trustee's commissions The court finds no basis upon which to estop Bruce from seeking commissions on a motion to amend.
Supplemental citation to issue or additional waivers must be filed with specific reference to
the claim for commissions.This constitutes the decision and order of the court.
Dated: December 18, 2009
JOHN B. RIORDAN
Judge of the
Surrogate's Court
Footnotes
Footnote 1: The court notes a miscalculation
in the commissions sought. The Affidavit amending the account charges two-thirds of the annual
commission to principal for the entire period of the account beginning in 1979. However, prior
to August 4, 1993, annual trustees commissions were charged one-half to income and one-half to
principal (Sec L. 1993, ch 514).
Footnote 2: There is no indication in the
court's files that the agreement was filed with the court.
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