PROCEDURAL HISTORY

Compelled accountings by the trustees of the two above captioned trusts are pending before the court. The objectant is Elliott Horner Harvey (sometimes referred to herein as "Objectant), a beneficiary of the trusts. The Horner 2018 irrevocable family trust, dated December 3, 2018 (the 2018 Trust), is the successor to a prior trust, or trusts, established by Ibolya Horner. Upon Ibolya Horner's death in 2019, the Article 5 trust FBO Elliott Horner Harvey (the Article 5 Subtrust) was created, pursuant to the terms of the 2018 Trust. The court granted the petition to compel these accountings in September 2022; the accountings were ultimately filed on December 21, 2022. Objections and amended objections were filed to the accountings and the parties have engaged in discovery and discussions regarding potential resolution of the issues.

On December 13, 2024, then-counsel for the trustees petitioned the court for permission to withdraw from representation of the trustees, based on counsel's perception that the claims raised in the amended objections precluded their continued representation of all three trustees. That motion was granted by the court in open court at the return date on that petition on January 21, 2025, confirmed by written decision dated January 23, 2025. On January 14, 2025, counsel for objectant filed a motion for the appointment of a receiver for the trusts, which was ultimately denied by decision and order dated August 1, 2025, which also imposed some limitations and reporting requirements on trustee Brigitte Harvey, modified by decision and order dated August 1, 2025.

A partial summary judgment was filed by Elliott Horner Harvey on September 17, 2025. The summary judgment motion is supported by an affirmation of Cecelia Cannon, Esq., as counsel for Objectant; an affirmation of Elliott Harvey; 58 exhibits; and a memorandum of law. The motion seeks a determination that the underlying trust assets were not properly transferred to the 2018 Trust.

On November 20, 2025, trustee Brigitte Harvey filed opposition to the motion, supported by an affirmation from Julian Modesti, Esq.; an affirmation of Brigitte Harvey; and a memorandum of law. On December 2, 2025, Ms. Cannon filed a reply attorney affirmation, an affirmation from Objectant, and a reply memorandum of law.

The motion was adjourned twice and ultimately returnable on December 5, 2025, at which time the court held oral argument. Ms. Cannon appeared at the courthouse and Mr. Modesti appeared via Microsoft Teams. The court granted the motion for partial summary judgment on the record, confirmed by this written decision.

Ibolya Horner established The Horner 2016 Irrevocable Family Trust (the "2016 Trust) dated August 22, 2016, naming Brigitte Harvey and Elliott Horner Harvey as trustees. Article Two of the 2016 Trust listed Brigitte Harvey and Elliott Horner Harvey as the lifetime trust beneficiaries. The 2016 Trust provided that upon Ibolya's death, 49% of the 2016 Trust's assets would transfer to Brigitte and the remainder would transfer to Elliott. The assets placed in the [*2]2016 Trust included interests in Hickory Estates, LLC, Globus International, LLC, Manchester Court, LLC, and Quiet Bay, LLC. These LLCs hold title to rental properties located in the Southern Tier of New York.

In 2017, Jon J. Sarra, Esq., who had been appointed as Independent Special Trustee by the trustees on June 29, 2017, decanted the 2016 Trust assets, including the LLC interests, pursuant to Article Five of the 2016 Trust, from the 2016 Trust into a restated version of the 2016 Trust, signed August 2, 2017 (the "2017 Trust"). The 2017 Trust reversed the remainder beneficiary interests so that upon Ibolya's death, 51% of the LLC assets would transfer to Brigitte and 49% would transfer to Elliott.^[FN1]

On July 23, 2018, Ibolya removed Elliott Harvey as trustee of "The Horner 2016 Irrevocable Family Trust which was created by Agreement dated August 22, 2016,"^[FN2] and appointed Steven Michael Harvey and Nancy Beth Valenta as "successor Co-Trustees," pursuant to Section 3.02 of that trust.

Ibolya Horner signed a trust agreement titled The Horner 2018 Irrevocable Family Trust (the "2018 Trust") dated December 3, 2018, naming Brigitte, Nancy Beth Valenta, and Steven Michael Dolan as Trustees. Article Five of the 2018 Trust provided that upon Ibolya's death, 51% of the assets would be distributed outright to Brigitte, with the remaining 49% to be held in trust for the benefit of Elliott. Ibolya signed a Statement of Intent dated the same day as the 2018 Trust, giving consent for the Independent Trustees of the 2017 Trust to transfer assets to the 2018 Trust.

Ibolya Horner died on August 7, 2019. At some point thereafter, Nancy Beth Valenta and Steven Michael Dolan, as independent trustees of the 2017 Trust, executed an "Assignment of Trust Assets" document purporting to "assign, transfer and convey all of the [2017] Trust property" to themselves and Brigitte Harvey "as Trustees of the 2018 Trust." The Assignment is stated to be "effective December 3, 2018," but it is not disputed that the document was signed after Ms. Horner's passing. Other documents assigning the LLCs to the 2018 Trust were also executed over the fall of 2019, all after Ms. Horner's death.

A party is entitled to summary judgment under CPLR 3212(b) where the movant establishes a cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment." Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979). When the movant establishes that he is entitled to judgment as a matter of law, the summary judgment motion must be granted. CPLR § 3212(b); Zuckerman v City of New York, 49 NY2d 557 (1980). Once a prima facie case is established, summary judgment should be denied only if the opposing party can produce evidentiary proof in admissible form sufficient to create a question of material fact requiring a trial. Zuckerman, 49 NY2d at 562. Mere conclusory or [*3]unsubstantiated allegations are insufficient to raise triable issues of fact. Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966 (1988).

In an accounting proceeding, the party submitting the account has the ultimate burden of demonstrating that all the assets of the estate have been fully accounted for. Matter of Johnson, 166 AD3d 1435, 1436 (3d Dept 2018). Where the account is contested, the objectant bears the initial burden of proffering evidence to establish that the account is inaccurate or incomplete, and, upon satisfaction of that burden, the burden shifts to the fiduciary to prove, by a preponderance of the evidence, that the account is accurate and complete. Id., citing Matter of Jewett, 145 AD3d 1114, 1115-1116 (2016) (internal quotation marks, brackets and citations omitted).

EPTL 7-1.18 indicates that "[a] lifetime trust shall be valid as to any assets therein to the extent the assets have been transferred to the trust. For purposes of this section, (a) transfer is not accomplished by recital of assignment, holding or receipt in the trust instrument . . ." (emphasis added). The mere recital in a trust instrument is not sufficient to transfer assets into a trust; some other written assignment is necessary. Dictor v Martin, 62 Misc 3d 228, 234, 88 N.Y.S.3d 857 (NY Dist. Ct. 2018). Ibolya signed a Statement of Intent upon the creation of the 2018 Trust, but this was a non-binding statement of her intent regarding the disposition of assets in the 2017 Trust. This document did not transfer the LLC assets and was not binding on the Trustees. Ibolya did not own the LLCs as of date of Statement of Trust, as she had conveyed them in August 2016 to the 2016 Trust without reserving any right to them to herself individually. By the time of the creation of the 2018 Trust, Ibolya had no authority to direct anything with respect to the assets in the 2017 Trust.

On this motion for partial summary judgment, Objectant bears the initial burden of demonstrating the accountings were inaccurate in listing the LLC interests as assets of the 2018 Trust. The documentary and other evidence submitted in support of the motion clearly establishes that the assignments of the LLC interests from the 2017 Trust into the 2018 Trust were executed after the date of Ibolya's death but purported to be retroactive to before her death. In response to the motion, Ms. Harvey admitted the assignments were signed by the trustees after Ibolya's death. Ms. Harvey also does not dispute that neither the 2018 Trust Agreement nor the Statement of Intent effectuate the transfer of assets from the 2017 Trust to the 2018 Trust. Instead, in response to the motion, Ms. Harvey argues that Ibolya's intention was that the assets be transferred to the 2018 Trust and the retroactive assignments were sufficient to meet the requirements of EPTL 7-1.18.

Ibolya had no retained authority under the 2017 Trust to transfer assets owned by that Trust. The Statement of Intent did not effectuate a transfer of assets to the 2018 Trust and did not purport to do so. The language in the statement explicitly confirms that Ibolya had no authority to direct or compel any of the Trustees to exercise their discretion to make transfers of assets owned by the Trust and states her "consent" to any such transfer which might be undertaken by the Independent Trustees. Even assuming Ibolya's intent that the assets be transferred to the 2018 Trust, she lacked the authority to transfer them, and her intention is not sufficient to effectuate a transfer of the assets. EPTL § 7-1.18; Dictor, supra. Her intention is irrelevant to whether the transfer was legally effectuated before her death. See, Hunnell v Hunnell, 45 AD2d 521 (4th Dept 1974) (analogous situation of a change in life insurance policy beneficiary).

Trustee Harvey's reliance upon Matter of Wallens is misplaced. Wallens holds that in determining if a trustee's distribution is proper the settlor's intention is controlling, also holding that the settlor's intention is to be determined by the unambiguous language of the trust document itself. Wallens, supra, at 122. The issue in Wallens was whether distributions by the trustee to a beneficiary were consistent with his fiduciary duty as expressed in the trust. Id. at 123. In this case the actions by the Trustees purported to divert the assets from the 2017 Trust, which vested them outright in Objectant, to the 2018 Trust, which held them in further trust for Objectant.

Under Section 5.03 of the 2017 Trust, which it is not disputed held the LLCs and other assets at the time of Ibolya's death, Ibolya's death was the triggering event which vested the interest of Objectant (and Brigitte) as beneficiary. Prior to Ibolya's death, there was a mechanism to change the residuary distribution of the Trust — that mechanism had been utilized to modify the 2016 Trust to the 2017 Trust. Upon Ibolya's death, Elliott's interest in the remainder vested and there is no provision in the Trust for its divestment through later action by the Trustees.

The court finds that there was no valid authority under the 2017 Trust or New York law by which any trustee could retroactively assign the assets in the 2017 Trust to the 2018 Trust. Those assets remain assets of the 2017 Trust and are distributable in accordance with that trust, i.e., outright to Objectant.

The court does not find availing the arguments advanced by trustee Harvey that effect should be given to the retroactive transfer of assets because it would not disadvantage Objectant, or "deprive him of a vested interest." Petitioner's Memorandum of Law, page 5. Depriving Objectant of a vested interest is exactly what the retroactive assignment to the 2018 Trust purported to accomplish. It is correct that Objectant was a beneficiary of the 2017 Trust and the 2018 Trust. But his interest under the 2017 Trust, vested at the time of Ibolya's death, was an outright distribution, and his interest under the 2018 Trust, if the retroactive transfer is given effect, is an interest in further trust, with distributions to him in the discretion of the trustees. To say it strains credulity to assert these are comparable interests is a substantial understatement. And we have a direct example of how substantial in this case: the trustees of the 2018 Trust allowed the distribution of 100% of the more than $500,000 net proceeds of sale of one of the LLC owned apartment complexes to Brigitte, to the complete exclusion of Elliott. The case law barring retroactivity due to prejudice to third parties is supportive of this determination. See, e.g., Accts. Retrievable Sys., LLC v McKiernan, 227 AD3d 1040, 1041 (2024); Buffalo Niagara Airport Firefighters Ass'n v DiNapoli, 111 AD3d 994, 996 (2013).

Objectant has met his initial burden to show entitlement to judgment as a matter of law, Ms. Harvey did not produce sufficient evidentiary proof in admissible form sufficient to create a question of material fact requiring a trial and denial of this motion. As such, the Court must grant the motion, finding in favor of Objectant. The retroactive assignment of assets to the 2018 Trust was invalid at inception and is set aside. The 2017 Trust owns the assets at issue, and since Ibolya Horner has died, the assets held by that trust must be distributed according to the terms of that trust.

This decision constitutes the order of the Court.

In furtherance of this decision, it is

ORDERED, that the motion filed on behalf of Elliott Horner-Harvey for partial summary judgment is GRANTED; and it is further

ORDERED, that the trustees of the 2018 Trust are directed to undertake to correct all action taken since the death of Ibolya Horner which are inconsistent with this decision promptly and diligently.