In the Matter of Michael Simmons and Marcia Simmons Crim, as Co-Trustees of the Eugene and Pearl Simmons Irrevocable Income Only Trust also known as "The Trust"; Mark Simmons, Co-Trustee
Categories
Attorneys and Parties
Brief Summary
Trusts and estates; removal of a trustee for alleged misconduct.
The Surrogate's Court granted the petition in part under Surrogate's Court Procedure Act (SCPA) 711 [grounds for judicial removal of a fiduciary] and SCPA 719 [summary removal of a fiduciary in specified circumstances], removed Mark Simmons as co-trustee, and denied his cross-petition seeking dismissal and removal of the other co-trustees.
The Appellate Division vacated the portion of the decree removing Mark Simmons as co-trustee.
Removal without a hearing was improper because the alleged misconduct was not established by undisputed facts or concessions. Mark Simmons submitted an affidavit disputing the accusations, offering his own explanation of his conduct under the trust documents, and creating credibility issues that required an evidentiary hearing.
Background
Michael Simmons, Marcia Simmons Crim, and Mark Simmons were named co-trustees of the Eugene and Pearl Simmons Irrevocable Income Only Trust. Michael Simmons and Marcia Simmons Crim commenced a proceeding alleging that Mark Simmons improperly removed trust assets and interfered with the leasing of trust property, and they sought his removal as co-trustee. Mark Simmons denied the allegations and filed a cross-petition seeking dismissal of the petition and removal of the other co-trustees.
Lower Court Decision
The Surrogate's Court, Onondaga County, granted the petition in part, removed Mark Simmons as co-trustee of the trust, and denied his cross-petition.
Appellate Division Reversal
The Appellate Division modified the decree by vacating the portions that granted the petition in part and removed Mark Simmons as co-trustee. The court affirmed the decree as modified and remitted the matter to Surrogate's Court for further proceedings, holding that a hearing was required before any removal decision could be made. The court also noted that Mark Simmons abandoned any challenge to the denial of his cross-petition because he did not raise that issue in his appellate brief.
Legal Significance
The decision reinforces that removing a fiduciary under SCPA 711 or 719 is a serious remedy because it nullifies the settlor's choice. A court may summarily remove a trustee only when misconduct is established by undisputed facts, concessions, or conduct occurring in the court's presence. When the parties' affidavits present conflicting factual accounts or competing inferences, the Surrogate must hold a hearing and make credibility determinations before deciding whether removal is warranted.
A New York trustee cannot be removed on disputed allegations alone; where material facts are contested, the Surrogate's Court must conduct a hearing before displacing the settlor's chosen fiduciary.