In the current motion before the Court, the trustee, Laurie A. S. DeSantis, (“Objectant”) seeks to reargue the September 12, 2018 order of this Court which denied summary judgment. The former trustee, Steven DeSantis, opposes said motion.The lengthy history of this case will not be recited herein, however, limited background information is provided below.FactsThe decedent died in 2005, leaving behind a testamentary trust (the “Trust”) which named Danielle DeSantis (now known as Danielle DeSantis Libretti), her grand-daughter, as the beneficiary. Steven DeSantis, Danielle’s father, (“Petitioner”), was the first trustee, serving from April 25, 2006 until his removal in November 14, 2013. In 2013, Danielle DeSantis petitioned this Court to remove her father as Trustee and instead appoint Laura A. DeSantis, the named successor Trustee, in the Decedent’s will. The Surrogate held a hearing on October 21, 2013 to determine whether Petitioner should be removed as Trustee. The Court, ruling from the bench, determined that the Petitioner did in fact breach his fiduciary obligation for his failure to keep accurate records, co-mingling funds and self-dealing. The subsequent written decision, dated November 14, 2013, listed the reasons for Petitioner’s removal and directed him to “file an account, together with a petition for its judicial settlement within sixty (60) days of service upon him of a copy of this Order.”The initial accounting was filed on February 7, 2014 and thereafter, amendments were submitted pursuant to court directives. On September 2, 2014, an acceptable accounting was submitted, which prompted the issuance of a citation with a return date of October 22, 2014. Objections to the accounting were filed on February 11, 2015 by the Objectant through her counsel, James R. Cohen, Esq. Discovery and motion practice ensued, with a motion for summary judgment filed on or about May 2, 2017. Objectant sought to direct the Petitioner to repay the Trust the sum of $287,080.66, based on approximately 33 objections. Petitioner thereafter opposed the motion. On September 12, 2018, the court issued a decision and order denying the motion for summary judgment since issues of fact existed as to the individual objections which required a hearing. Objectant thereafter filed the order with Notice of Entry on October 18, 2018. The present motion to reargue the summary judgment motion was then filed on November 16, 2018.Motion for Summary JudgmentObjectant seeks re-argument pursuant to CPLR 2221(d) and upon re-argument, a granting of summary judgment to Objectant on four out of the 33 objections to the accounting, to wit:1. denying Petitioner his claim for any and all trustee’s commissions claimed ($33,086.56) as a matter of law based on the outcome of this Court’s decision and order dated November 14, 2013;2. denying Petitioner’s claim for unpaid legal fees and unpaid future legal fees ($47,982.90) based on the outcomes of this Court’s decision and order dated November 14, 2013;3. denying Petitioner’s claim for properly paid legal services to Thelen Reid Brown Raysman & Steiner, LLP in the amount of $66,500; and4. denying Petitioner’s claim for properly paid legal services to Behrins & Behrins, P.C., in the amount of $38,013.35 based on this Court’s decision and order dated November 14, 2013.Essentially, Objectant seeks re-argument and reversal on the theory that this Court, having already found the Petitioner unfit to serve as trustee and removed as fiduciary, should not then be entitled to commissions or legal fees associated with his tenure as fiduciary.Petitioner contends that the re-argument motion is untimely pursuant to CPLR 2221(d) and since a notice of appeal was not filed, the order is therefore final. Petitioner further contends that the motion fails to demonstrate the law which was allegedly overlooked or misapprehended that would warrant reargument.CPLR 2221The relevant portions of CPLR 2221(d) state:A motion for leave to reargue:2. Shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and3. Shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the Appellate Division or the Court of Appeals.Orders in Surrogate’s Court are self-entering, since its clerk’s office is self-contained. In re Will of D’Ambrosio, 2013 NYLJ LEXIS 187 (Richmond County 2013), the court found:[A]s pointed out in SCPA §2701 (1), it is by necessary implication that no Note of Entry is required because the Surrogate’s Court does not have a separate County Clerk’s office. The Surrogate’s Court is self-containing and self-sufficient whereas there is no need for a county clerk to enter orders or to obtain file numbers because everything is done within the clerk’s office of the Surrogate’s Court. […] The purpose of a Note of Entry is to notify the parties of the order and its date and place which does not need to be done in Surrogate’s Court because it is automatically done with every decision and order when scanned and mailed to each respective attorney. The efficiency of this Court should not be a windfall in allowing one party to argue against the Court’s Order one year after it was signed.Since Surrogate’s Court orders are in fact, self-entering, the date this Court must look to in order to determine whether or not the motion to reargue was timely made is the date of the order, September 12, 2018. Therefore, Objectant’s motion for leave to reargue was not made within thirty days as per CPLR 2221 (d). However, the thirty-day rule is not absolute, and this fact pattern differs from In Re Will D’Ambrosio, supra, in as much as the Objectant brought her motion during the pendency of the matter and prior to the required and imminent hearing on the accounting. “”[R]egardless of statutory time limits concerning motions to reargue, every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action” Liss v. Trans Auto Sys., 68 NY2d 15, 20 (1986); Aridas v. Caserta, 41 NY2d 1059 (1977). The Surrogate’s Court had the discretion to reconsider its prior order even though the time to make the motion to reargue had expired.” Matter of Burns, 228 AD2d 674, 675, (2nd Dept 1996).Accordingly, on the issue of timeliness, the Court determines the motion to reargue is timely.As to the second prong of CPLR 2221 (d), whether the court allegedly over-looked or misapprehended fact or law, in its original decision, Petitioner’s ultimate removal in light of the issue of his possible compensation or lack thereof for his fiduciary duties, cannot be determined as a matter of law. “The Courts have never hesitated to deny or reduce commissions for a job poorly done.” Estate of Palcic, 2001 NYLJ 2406 (Sur Ct Richmond County, 2001). However, the fiduciary’s judgments are reviewed individually. In Matter of Kramer, 78 Misc.2d 662 (Sur Ct NY County 1974), the Surrogate explained that:[a]n executor may be denied commissions for misconduct, breach of trust or mismanagement of the estate. [...[ In the absence of bad faith, neglect of duty or wanton disregard of rights of persons interested in the estate, commissions should not be denied an executor. [...] An executor is not “expected to be infallible in his judgments or decisions. Like all mortals, he is liable to make mistakes.” [...] Even if the fiduciary acted erroneously, if there is no evidence of bad faith, he should not be denied his commission. (Citations omitted)Objectant cites Matter of Kasawits, 25 Misc3d 1228 (Sur Ct Westchester County 2009), a matter which is distinguishable. In Kasawits, the fiduciary had an opportunity to provide proof of his actions or inactions through the submission of stipulated facts and exhibits. In the present matter, the Petitioner has not had the opportunity to present evidence and testimony, to determine he is allowed any commissions or surcharges. Also cited by Objectant is Matter of Newhoff, 107 AD2d 417 (2nd Dept 1985), in which the court also held a hearing on the contested accounting before a final determination was made on the issue of commissions and the attorneys’ fees.Furthermore, applying the same argument to attorney fees, some, none, or all of the attorney services that the Objectant seeks to have the petitioner pay personally, may be valid. Since the issue of attorney fees, if any, is positioned as factual questions, summary judgment would be pre-mature at this juncture, and accordingly, is denied.ConclusionBased on the foregoing, the motion to reargue is denied. This matter is hereby placed on the Court’s Calendar on March 13, 2019 at 9:30 a.m. for the selection of a hearing date. All parties have previously indicated that discovery is complete and, therefore, the time has finally come to put this fourteen-year-old matter to rest.This decision shall constitute the Order of the Court.Dated: February 15, 2019
