Matter of Kirschner

[*1] Matter of Kirschner 2013 NY Slip Op 51766(U) Decided on October 18, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2013
Sur Ct, Nassau County

In the Matter of the Petition for a Compulsory Accounting of Amy Kirschner, as Co-Trustee of a Trust u/a of Nathan Kirschner, Deceased.



2013-374485



Novick & Associates, P.C.(for Amy Kirschner)

202 East Main Street, Suite 208

Huntington, NY 11743

Jaspan, Schlesinger, LLP(for Joy Matza)

300 Garden City Plaza, 5th Floor

Garden City, NY 11530

Edward W. McCarty III, J.

In this proceeding for a compulsory accounting, respondent Amy Kirschner moves for an order pursuant to CPLR 327, CPLR 3211 (a) (3) and SCPA 207 (1) dismissing the petition of Joy Matza to compel. The motion is disposed of as hereinafter set forth.

Decedent died on December 10, 2012, a resident of the State of New Hampshire survived by the parties, his daughters. Joy Matza lives in Long Island, New York, and Amy Kirschner lives in Milford, New Hampshire. Decedent created a trust dated April 12, 2005 in the State of Florida which upon his death [his wife having predeceased him] is to be distributed equally to the parties. Under an amendment to the trust dated November 2, 2010, decedent named Amy to serve as a co-trustee with him and, as the sole remaining trustee since his death, she avers she is winding-up the affairs of the trust.

Turning first to the CPLR 3211 (a) (3) claimed basis for dismissal, standing, same is disposed of easily. As a beneficiary of the trust, petitioner obviously is a "person interested" (SCPA 103[39]) and, all else being equal, could petition for a compulsory accounting. Respondent's argument that since the court has no jurisdiction over the trust under SCPA 207 petitioner therefore lacks standing merely begs the question of jurisdiction.

SCPA 207 contains a trilogy of circumstances under which a New York Surrogate may exercise jurisdiction over an inter vivos trust. The fact that a beneficiary resides here is not one of them. While the moving papers aver that none of those circumstance apply here, from the opposition papers it is clear petitioner believes that the location of trust assets in New York provides the jurisdictional predicate.

The only support for that contention are copies submitted by petitioner of a brokerage [*2]statement for the trust at inception [Ex. A: Wachovia Securities; referencing a Florida financial advisor] and another brokerage statement from at or about the date of death of the decedent

[Ex. B: Wells Fargo; referencing a Florida financial advisor], both of which show promissory notes, CDs and bonds from banking institutions and investment brokerage houses (Lehman Brothers, Goldman Sachs, Bank Leumi, Morgan Stanley, Citigroup) which had and/or have their "corporate" or "world" headquarters in New York, New York.[FN1] That circumstance, petitioner's attorneys' advance, establishes jurisdiction.

Petitioner's reliance on statute [SCPA 208 (3)], involving shares of stock in a New York domestic corporation owned by a non-domiciliary, or case law involving disclosed or non-disclosed assets owned by a non-domiciliary but undisputedly located in New York (DiMauro v. Pavia, 492 F. Supp 1051, 1060 [Conn. D. 1979]; Matter of Jensen, 39 AD3d 1136 [3d Dept 2007]) is misplaced. These authorities only tend to highlight the requirement for a New York located asset nexus not present at bar. Furthermore, securities and cash held in brokerage accounts in Florida constitute property in Florida for purposes of jurisdiction (Matter of Harrison, NYLJ, Feb. 2, 1995, at 29, col. 3 [Sur Ct, New York County]).

While given this disposition of dismissal on the grounds of lack of jurisdiction there is no need to reach the forum non conveniens issue, it bears repetition that the only connection to New York is the fact that Joy lives here.

The motion to dismiss is granted.

Settle decree.

Dated: October 18, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate' s Court Footnotes

Footnote 1:No copies of any notes, CDs or bond themselves are provided, nor are copies of any other paper trail regarding these investments provided, and the opposing papers contain no other allegation of a New York connection other than as indicated.