Surrogate Mella ESTATE OF THE REUBEN HOPPENSTEIN 2005 TRUST (15-2918/F) — This is a proceeding for the settlement of the account of Abraham Solomon Hoppenstein, as trustee of the trust created by his brother, Reuben Hoppenstein, dated October 10, 2005 (the 2005 Trust, or Trust). The grantor’s four children — Cheryl Hoppenstein (Cheryl), Ava Hoppenstein Shore (Ava), Charles Hoppenstein (Charles), and Tivia Kramer (Tivia) — along with their children, were discretionary beneficiaries of the Trust. The personal representative of the now deceased trustee and the trustees of trusts that succeeded to the assets of the 2005 Trust have moved for summary judgment dismissing the objections of Cheryl and her five children. Objectants have cross-moved for summary judgment sustaining their objections.1 The lengthy procedural history of this case is outlined in the court’s August 2021 decision granting movants’ motions for protective orders (Matter of Hoppenstein, NYLJ, Aug. 13, 2021, at 17, col 1 [Sur Ct, NY County 2021], affd Matter of Hoppenstein, 209 AD3d 492 [1st Dept 2022]) and will not be repeated here in detail. In sum, movants’ position is that Objectants have no standing to assert claims for the Trust’s loss of nearly $986,000 because Cheryl and her children are no longer beneficiaries. Pursuant to express broad authority in the Trust agreement and as also permitted by EPTL 10-6.6, the trustee in effect terminated the Trust on October 15, 2011, by “decanting” one-third of its total assets to each of three new trusts for the primary benefit of Ava, Charles, and Tivia, respectively. These distributions exhausted the entire Trust and eliminated Cheryl and her children as potential beneficiaries of its assets. In an earlier decision, the court ruled that Objectants had standing to argue in favor of their standing, and were entitled to discovery on the question of whether the transfers constituted a breach of the trustee’s fiduciary duties (Matter of Hoppenstein, NYLJ, July 31, 2019 at 25, col 5 [Sur Ct, NY County]).2 Objectants proceeded to serve voluminous demands for discovery directed at proving the trustee’s liability for an allegedly improvident loan that became worthless, rather than uncovering an improper, self-serving motive for the transfers. Movants were twice granted protective orders when Objectants violated directions from the court to limit the scope of their discovery to the “bona fides” of the transfers. In the definitive and often-cited language of the Court of Appeals, to prevail on a motion for summary judgment,
“the proponent…must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). In this case, the fiduciaries have shown that the 2011 transfers were valid on their face, having complied both with the terms of the Trust, which gave the trustee unlimited discretion to distribute “to such one or more of the Grantor’s descendants…and in such shares or proportions, as the Trustee may determine”; and with the “decanting” statute, EPTL 10-6.6.
