Matter of Miness v Deegan

[*1] Matter of Miness v Deegan 2013 NY Slip Op 51601(U) Decided on September 26, 2013 Sur Ct, Nassau County McCarty, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2013
Sur Ct, Nassau County

In the Matter of the Proceeding of Mark Miness and Stephanie M. Begnal, Beneficiaries of the Miness Family Insurance Trust, Petitioners,

against

Francis W. Deegan and Saul Fenchel, as Trustees of the Miness Family Insurance Trust, Respondents, Pursuant to SCPA 2205 and 2206 seeking a Compulsory Accounting in connection with THE MINESS FAMILY INSURANCE TRUST.



2012-369167



The appearance of counsel are as follows:

Jeremy A. Welfer, Esq. (for petitioners)

Sexter & Warmflash, p.C.

115 Broadway, 15th Floor

New York, NY 10006

Joseph & Terracciano, LLP (for respondent Saul Fenchel)

2 Roosevelt Ave., Ste. 200

Syosset, NY 11791

Brosnan & Hegler, LLP (for respondent Francis W. Deegan)

1325 Franklin Avenue, Ste. 335

Garden City, NY 11530

Edward W. McCarty III, J.

In this proceeding to compel an accounting, the petitioners, Mark Miness and Stephanie M. Begnal, move for an order granting leave pursuant to CPLR 2221 (d) and (e) to renew and reargue the decision and order of this court dated April 9, 2013 (Dec. No. 28538), which directed Saul Fenchel to file an account of his proceedings as co-trustee of The Miness Family Insurance Trust for the period October 10, 1988 through November 9, 2009. Upon grant of leave to reargue or renew, petitioners seek an order modifying the prior decision and directing that Saul Fenchel file an accounting from October 10, 1988 through the present date.

BACKGROUND

As discussed in the prior decision, The Miness Family Insurance Trust (the "trust") is an irrevocable life insurance trust created by Michael D. Miness, as settlor, and Francis W. Deegan [*2]and Saul Fenchel, as trustees, on October 10, 1988. Petitioners are the children and sole descendants of the settlor, who is still alive. The trust provides that during the settlor's lifetime, each of the settlor's descendants may withdraw fixed amounts from the trust each year, presumably so that transfers by the settlor for the payment of insurance premiums will qualify for the annual gift tax exclusions. The co-trustees are granted the power to make distributions, in their discretion, to or for any of the settlor's descendants for health, support, maintenance and education.

In connection with the compulsory accounting petition filed by Mark Miness and Stephanie M. Begnal, an account was filed by co-trustee Francis W. Deegan which covered the period from October 10, 2008 until August 31, 2012. Co-trustee Saul Fenchel claimed that he did not have to account because he had previously resigned as trustee and because the petitioners lacked standing to demand an account. In Decision No. 28538, dated April 9, 2013, this court ordered Saul Fenchel to file an account of his proceedings for the period October 10, 1988 through November 9, 2009. The closing date of the account directed by the court was based upon documents submitted to the court reflecting Saul Fenchel's resignation as trustee, along with notice to his co-trustee and to the settlor. The motion presently before the court challenges the validity and effectiveness of that resignation.

ANALYSIS

Motion to Renew

A motion for leave to renew must be based upon new facts not presented on the prior motion that would alter the court's earlier determination (CPLR 2221 [e]). A movant on a motion to renew must demonstrate a reasonable justification for not placing such alleged additional facts before the court on the original motion (CPLR 2221 [e] [3]). The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application (Winograd v Neiman Marcus Group, 11 AD3d 455 [2d Dept 2004]; Seltzer v City of New York, 288 AD2d 207 [2d Dept 2001]; Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636 [2d Dept 2000]).

Petitioners take the position that the prior decision and order of this court should be overturned or reversed because information which they deem critical was not conveyed to the court: (1) that Saul Fenchel could not resign without court approval, and (2) that petitioners only learned after filing their petition that the trustees had made unsecured loans to the settlor.

The court finds that no new facts pertinent to the relief sought have been presented. Petitioners' belief that Saul Fenchel required court approval to resign is not a fact (and the issue is discussed below in connection with the motion to reargue). As to the unsecured loans allegedly made by the trustees, the court notes that regardless of whether the court had been in possession of such information, the result would have been no different. The issuance of unsecured loans has no impact on the court's direction that Saul Fenchel account until November 9, 2009. Accordingly, there is no basis for granting leave to renew herein.

Motion to Reargue

A motion to reargue is not based upon any new facts, but seeks to convince the court that it overlooked or misapprehended the facts or the law on the prior motion, or for some reason mistakenly arrived at its earlier decision (CPLR 2221 [d]; Bolos v Staten Island Hosp., 217 [*3]AD2d 643 [2d Dept 1995]; Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]). A motion to reargue is not to be used as a means by which an unsuccessful party is permitted to argue again the same issues previously decided (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992]; Pro Brokerage v Home Ins. Co., 99 AD2d 971 [1st Dept 1984]), nor does it provide an unsuccessful party with a second opportunity to present new or different arguments from those originally asserted (Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737 [2d Dept 2006]; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388 [2d Dept 2005]; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434 [2d Dept 2005]; Amato v Lord & Taylor, Inc., 10 AD3d 374 [2d Dept 2004]; Frisenda v X Large Enters., 280 AD2d 514 [2d Dept 2001]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]).

Petitioners now argue that Saul Fenchel's resignation was ineffective because it failed to comply with SCPA 715 or EPTL 7-2.6 (1).[FN1] Since petitioners did not raise this argument previously, the effectiveness of Saul Fenchel's resignation was not directly addressed in this court's prior decision.

After the present motion was filed, Saul Fenchel filed his account for the period of October 10, 1988 through November 12, 2009. Among the relief requested is an order "[a]pproving the resignation of Saul Fenchel, formerly co-Trustee of the of the Miness Family Trust, effective as of November 12, 2009 ...."

The court calendar reflects that an examination of Saul Fenchel, pursuant to SCPA 2211, is scheduled for October 10, 2013, with objections due 10 days after completion of the exam. Petitioners are free to raise an objection to Saul Fenchel's request that the court approve his 2009 resignation. The court will consider the effectiveness of the resignation in the context of the account and any objections filed thereto.

The court did not overlook or misapprehend the facts or the law. Accordingly, there is no basis for granting leave to reargue herein.

CONCLUSION

The motion is denied in its entirety.

This decision constitutes the order of the court and no additional order need be submitted.

Dated: September 26, 2013

Edward W. McCarty IIIJudge of the

Surrogate's Court Footnotes

Footnote 1:SCPA 715 allows a fiduciary to petition the court "that he be permitted to resign, that his letters be revoked" (SCPA 715). EPTL 7-2.6 (1) empowers the Supreme Court, in part, to accept a trustee's resignation and appoint a successor.