The decedent, Grace Capolarello, passed away on December 10, 2019, at 98 years of age survived by her four children, Dominick Capolarello, Domenica Faster, Mario Capolarello, and Maryann Corbo. Subsequently, Dominick submitted a petition for judicial settlement of his account as trustee of The Grace Capolarello Irrevocable Trust (“the Trust”). The Trust provided, inter alia, for income distributions to be made to the decedent during her lifetime, and upon her death the net proceeds, after deduction of authorized reimbursements, are distributed in equal shares to the decedent’s children. Objections have been filed to the accounting by two of the trust remainder-persons Mario and Maryann (“objectants”). Petitioner now moves pursuant to CPLR 3211 (a)(7) and SCPA 302 for dismissal of the “general objections” numbered 1-10 and moves pursuant to CPLR 3212 for summary judgment dismissing objections B-[1]; C-1[1]; E[1]; [1]; and [3]. In opposition, the objectants cross-move for summary judgment asserting their entitlement to the return of funds either already taken or claimed by the Trustee for expenses paid on behalf of the grantor as set forth in the accounting. The cross-movants further seek a protective order permitting the remote deposition of objectant Mario. Turning first to the branch of the motion to dismiss the objections pursuant to SCPA 302 and CPLR 3211(a)(7), the petitioner argues that the first ten objections identified in objectants’ pleadings, which are designated as “General Objections,” are “conclusory, non-specific rhetoric and raise no triable issues of fact.” In an accounting proceeding, both the account and the objections constitute pleadings which must be sufficiently particular to give the Court and the parties notice of a claim or objection (SCPA 302[2]). An objection must identify improper acts of the fiduciary which would warrant a surcharge and they should relate to an action or omission which results in damage to the objectant’s pecuniary interest, (see Matter of Holterboser, 216 AD3d 783). On a motion to dismiss objections for failure to meet basic pleading requirements (see SCPA 302[2]; CPLR 3211 [7]), there is a fundamental mandate to construe pleadings liberally (see Matter of Allan, 5 NY2d 333 [1959]) in order to ensure that a claim with substance not be sacrificed to mere formality. That said, bare legal conclusions lacking factual specificity are insufficient to defeat a motion to dismiss (see Matter of Clifford, 83 Misc. 3d 973 [Sur Ct, Monroe County 2024]; Matter of Caridi, 2019 NYLJ LEXIS 2471 [Sur Ct, New York County 2019]). Here, petitioner correctly notes that the general objections do not single out any particular entry in the account or refer to any specific action of the trustee as imprudent or unreasonable. Objectants do not dispute this, arguing instead that reference to specific accounting transactions are not required and conceding that the general objections “are not objections to the Accounting per se…” Upon review, it appears to the Court that the missing particularity of general objections 1-9 can be found in the section designated “specific objections.” As these broad and generalized objections are subsumed by the specific objections, the petitioner’s motion is granted to the extent that general objections 1-9 are dismissed as superfluous. General objection number 10, however, appears to take issue with the validity of petitioner’s utilization of a power of attorney to create the subject trust. The validity of the trust — which provides for an equal distribution among decedent’s distributees — is not at issue in this pending proceeding. Accordingly, general objection 10 is also dismissed, but on the basis that it is irrelevant to the controversy presently before the Court. With respect to the petitioner’s motion and objectants’ cross-motion for summary judgment, same will only be granted when the moving party has established that there are no triable issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320; Andre v. Pomeroy, 35 NY2d 361). The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., supra; Winegrad v. New York University, 64 NY2d 851; Zuckerman v. City of New York, 49 NY2d 557). In a proceeding to settle a fiduciary’s account, “the party submitting the account has the burden of proving that he or she has fully accounted for all the assets of the estate, and this evidentiary burden does not change in the event the account is contested. While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the burden then shifts back to the fiduciary to prove by a fair preponderance of the evidence that the account is accurate and complete” (Matter of Doman, 110 AD3d 1073 [2d Dept 2013] citing Matter of Schnare, 91 AD2d 859 [3d Dept 1993]; see also Matter of Carbone, 274 AD2d 515 [2d Dept 2012]. Petitioner has filed his petition and accounting as trustee and has annexed to his account a sworn affidavit stating, inter alia, that the schedules of assets of the trust are true and complete. The submission of same satisfies the trustee’s initial burden of showing that he has fully accounted for all of the assets of the trust and the accounting itself is complete and accurate (see SCPA §2209; Matter of Settel, 2008 NY Misc. LEXIS 1819 [Sur Ct, New York County 2008). As petitioner has made a prima facie showing of entitlement to summary judgment dismissing the objections (CPLR §3212[b]), it is now incumbent on the objectants to come forward with evidence that the account is inaccurate or incomplete (see Matter of Schnare, supra.) The Court first turns to Schedule B, Objection 1, which states that “The David Lerner assets had been held for the benefit of the four children equally. Further, according to the account title, Dominick Capolarello was not the trustee of the account.” According to the objectants, this vague objection “points out that the David Lerner assets were not assets of the trust.” Annexed to objectants’ papers are incomplete copies of David Lerner account statements for November and December of 2019. The statements are directed to “Grace Capolarello TTEE Grace Capolarello Trust 8/16/2017.” The evidence offered by the objectants, on its face, contradicts the objectants’ claims. Accordingly, Schedule B, Objection 1 is dismissed. No evidence has been submitted by the objectants in support of Schedule E, Objection 1, and Schedule I, Objections 1 and 3. Consequently, these objections are also dismissed. However, the substance of the primary dispute between the parties revolves around Schedule C-1, Objection 1 and concerns reimbursement sought by the trustee for expenses he advanced in the sum of $295,347.38. Both the motion, and the cross-motion, hinge upon whether the terms of the trust permit reimbursement to petitioner. As background, in the latter years of her life, the decedent was unable to live alone in her Bayside residence. The petitioner and Domenica primarily provided or arranged for decedent’s care and home health aides were employed to regularly tend to her needs. Eventually, a decision was made to place the decedent into the Bristal, an assisted living facility with an excellent, if pricey, reputation. It is unclear if either of the objectants were involved in making this choice but it is quite obvious that they considered the decedent’s placement to have been an extravagant and superfluous expense. The applicable language of the trust is as follows: (E) Disposition Upon Death Upon the death of the Settlor, this Trust shall terminate and the Trustee shall: 1. Repay to DOMINICK CAPOLARELLO all funds advanced by DOMINICK CAPOLARELLO for the benefit of the Settlor in connection with her support and maintenance for the period commencing February 1, 2017 to Settlor’s date of death, except there shall be no reimbursement of any funds advanced as and for Settlor’s medical expenses. It is understood that “medical expenses” shall not include funds advanced for equipment otherwise provided by any governmental program for which Settlor may have been eligible; all other funds advanced by DOMINICK CAPOLARELLO for equipment shall be reimbursed to DOMINICK CAPOLARELLO out of the Trust assets. It is undisputed that the trust language permitted the petitioner to pay for the Bristal directly out of the trust principal. In practice, however, to protect the income producing potential of the trust, the petitioner personally paid for the vast majority of the expenses relating to the Bristal, in addition to private health care aides and nursing home care, with the belief that the trust terms would permit reimbursement. The petitioner’s wife and his sister Domenica also personally paid for a portion of these expenses. The objectants, who did not make any such contributions, contend that the trust does not permit reimbursement of the monies petitioner advanced because they constitute “medical expenses.” In construing a trust, the court must look within the four corners of the trust instrument to glean the grantor’s intent (see Matter of Piel, 10 NY3d 163, [2008]). The trust instrument is to be construed as written and the settlor’s intention determined solely from the unambiguous language of the instrument itself (see Matter of Chase Manhattan Bank, 6 NY3d 456, 460, 846 NE2d 806, 813 NYS2d 361 [2006]). Ambiguities occur when the agreement on its face is susceptible to two different meanings (see e.g., Chimart Assocs v. Paul, 66 NY2d 570 [1986]). If the terms of the trust are ambiguous, the court may consider extrinsic evidence to determine the decedent’s intent (see Matter of Piel, 10 NY3d at 166). The Court finds that the mandate of the trust is clear in that funds advanced by Dominick Capolarello for the benefit of the decedent that are identified as medical expenses are not reimbursable. One might expect, given its significance, that the term “medical expenses” would thus be defined. However, not only is a definition lacking, but the trust does not provide any other indicia of whether expenses relating to the decedent’s home care, assisted living care, or nursing home care should be considered a “medical expense”. Curiously, there is also a dearth of case law defining the term under consideration here. The plain and ordinary definition of “medical services” are services rendered “because of illness, upon advice of [her] physician, which were reasonably necessary for [her] care and comfort and proper treatment by [her] physicians” (Black’s Law Dictionary [Revised 4th ed]; see also Park View Hospital Ass’n v. Peoples Bank & Trust Co., 211 N.C. 244, 189 S.E. 766, 769). While such definition provides some insight as to what may be intended by such terms, it is not precise enough to resolve the issue at bar. Therefore, consideration of extrinsic evidence is necessary to determine the decedent’s intent. In contemplating what extrinsic evidence is relevant to ascertain the decedent’s intent, the objectants’ papers adjure the Court to apply the definition of medical expenses provided by the Internal Revenue Code. The Internal Revenue Code provides that “medical expenses” include amounts paid for “qualified long-term care” (26 U.S.C. §213[d]). It further states that such qualified long-term care services are defined as necessary diagnostic, preventative, therapeutic, curing, treating, mitigating and rehabilitative services, and maintenance or personal care services, which — (A)are required by a chronically ill individual, and (B) are provided pursuant to a plan of care prescribed by a licensed health care practitioner” (26 U.S.C. §7702B[c][1]). If this definition were to be adopted, the analysis of whether the petitioner’s expenses may be reimbursed would be conditional on whether the decedent was chronically ill and if the care was prescribed by a licensed individual. Besides the fact that it is implausible the decedent intended the trustee to consider such a test, the Court notes that there is no evidence in the record before it that decedent was chronically ill nor has evidence been provided that the long-term care was prescribed by a licensed health care practitioner by the respondent. Moreover, the Court cannot ignore that the spirit of this particular statute of the Internal Revenue Code is to provide individuals in need of such care with deductions on their annual tax filings, so that they may maintain quality care that they otherwise would not be privileged to (26 U.S.C. §213[a]). Thus, the Court finds that applying the Internal Revenue Code to, in effect, penalize rather than benefit an individual from receiving a certain level of services is contrary to the purpose of the code and counterintuitive to the purpose of the trust. However, the Court finds the New York Public Health Law to be instructive. Pursuant to NYPHL §4650, facilities holding themselves out as assisted living residences are required to meet certain criteria in order to be granted a license. Assisted living residence means an entity which provides or arranges for housing, on-site monitoring, and personal care services and/or home care services (either directly or indirectly), in a home-like setting to five or more adult residents unrelated to the assisted living provider (NYPHL §4651). Assisted living facilities expressly do not include residential health care facilities, such as nursing homes that care for sick, invalid, firm, disabled or convalescent persons in addition to providing lodging and board (see id.; NYPHL §2801[2]) Thus, the statutes that define these facilities sets forth a clear distinction between assisted living residences, a place of “personal dignity, autonomy, independence, privacy, and freedom of choice” (Public Health Law §4651), and a nursing home, “a residential health facility” providing care to the sick and disabled. This distinction is persuasive, especially because the decedent, at the time of the execution of the trust agreement, had already lived for a significant period in an assisted living residence and was likely to have first-hand experience of its non-medical nature and an intent to continue the status quo. Therefore, taking the grantor’s lifestyle and past experiences into account, and based on the statutory law above, the Court finds that the grantor intended expenses relating to assisted living facilities to be reimbursable and expenses relating to nursing homes be considered medical expenses and therefore, not reimbursable. In consideration of the above findings, the Court disposes of the petitioner’s motion and objectants’ cross-motion for summary judgment solely to the extent as set forth below: The Court finds that there is a prima facie showing that expenses in the petitioner’s accounting that are self-defined as medical expenses are not reimbursable. The Court further finds that petitioner’s motion to dismiss the objections relating to any expenses attributable to the Bristal in the petitioner’s accounting is granted since they are eligible for reimbursement as these are expenses for support and maintenance and not medical expenses. However, it is denied regarding any expenses attributable to a nursing home. As to expenses relating to decedent’s home care aides, the motion is denied as triable issues of fact exist as to whether such services constitute medical expenses because the actual services rendered by such persons are not set forth. Finally, the Court finds that the petitioner was authorized by the trust to reimburse himself from the trust at the time of decedent’s death and that the amount recovered was appropriate in light of the Court’s findings in this decision and order. The remaining branch for the Court to consider is the branch of the respondents’ motion for a protective order pursuant to CPLR 3103 allowing for the remote deposition of Objectant, Mario Capolarello. The provisions of the CPLR governing depositions are founded on the assumption that depositions will be conducted in person and within the county where the action is pending (CPLR 3110, 3113). The exception to this general rule is where the party to be examined demonstrates that examination in such county would result in “hardship” to him or her (see, Bristol-Myers Squibb Co. v. Yen-Shang B. Chen, 186 AD2d 999; Levine v. St. Luke’s Hosp. Ctr., 109 AD2d 694, 695; Kahn v. Rodman, 91 AD2d 910, 911). Submitted in support of objectants’ cross-motion is an unsworn letter from the objectant’s doctor informing the Court that Mario Capolarello had a back surgery in September 2023 and it would be “contrary to medical advice” for the objectant to travel from the objectant’s domcile in Colorado to New York. The letter also indicates that after a year from his surgery, the doctor believed that “his symptoms will have improved to a point that he may travel.” Accordingly, under the facts of this case, and without any admissible evidence indicating that an examination of Mario Capollarello in New York would result in “hardship,” the cross-motion for a protective order is granted solely to the extent that the examination of Mario Capolarello shall take place in New York. However, upon consent of the parties, said examination may take place in Colorado under the condition that the objectants bear the expenses of any such exam. Said examinations shall be held on or before February 21, 2025. The parties and their counsel are directed to appear for a pre-trial conference on March 4, 2025 at 10:00 a.m. in Courtroom 62. This is the decision and order of the Court. Dated: December 30, 2024
