The genesis of this action is a family dispute between the Plaintiffs and the Defendant concerning lakefront property at Big Moose Lake, New York. Plaintiffs Barbara Bennett, Janice Martinez, and Phyllis DeLia, collectively "Bennett", are sisters of Defendant, Elis J. DeLia "Elis". Bennett's complaint sets forth three causes of action. They seek summary judgment as to the first cause of action pursuant to CPLR §3212. Elis opposes the motion contending there are issues of fact which must be resolved at a trial.

The parties, together with another sister, Jean DeLia, who has knowledge of this action but is not a named party, are the children of Spartacus DeLia "Spartacus", a very successful business person. Spartacus owned a lodge and other buildings situate on some thirty-five acres at Big Moose Lake, New York, named Tojenka. The property has some nine hundred feet of lake frontage. The record reveals that in 1993 Spartacus formed the S. DeLia Corporation. Its assets comprise the Lodge, personal property, and other commercial real property in New Hartford, New York. That same year Spartacus gifted 20% of the corporate stock to each of his five children and/or their children.^[FN1]Daina Bennett, daughter of Barbara Bennett, received 3.08% of the shares which equates to 20,000 shares. Elis has been President of the Corporation; he and his four sisters the corporate directors. The record reveals there have seldom been directors and/or shareholder meetings.

Around September, 2004, Spartacus became concerned that a majority of the shareholders might decide to sell Tojenka. He strongly opposed any such possible action, and decided it would be in the family's best interest if each shareholder redeemed his/her corporate shares and in lieu thereof a trust be established to hold and own the corporate assets. He desired that Elis act as the sole trustee with each of his children being a twenty percent residuary distributee if the trust terminated. In concurrence with Spartacus' desire each sibling delivered to Elis their respective shares to be redeemed. Plaintiffs believed redemption of one hundred percent of the shares was mandated before the family trust was funded.

On January 1, 2005, Elis established and funded the "Tojenka Lodge Trust", a revocable trust with broad powers granted to himself as sole trustee. At the time he created the Tojenka Trust Elis redeemed the shares delivered to him and then issued to the Trust one share of S. DeLia Corp.^[FN2] Thereafter acrimony ensued among the parties over a number of issues. Daina Bennett declined to redeem her 20,000 shares.^[FN3]Bennett's first cause of action demands return of their respective shares based upon the fact Elis had not received and redeemed one hundred percent of the shares. Elis declines to return or re-issue the shares. He submits it was never essential that one hundred percent of the shares of the corporation be placed in trust to effect the purposes of the Trust, the main purpose of which was control over Tojenka. He submits at least that creates a factual issue requiring denial of the summary judgment motion.

LAW [*3]

The purpose of the Trust was to grant the Trustee control over Tojenka and the other corporate assets. While Elis submits an issue exists whether or not prior to creating the Trust he was required to receive one hundred percent of the outstanding corporate shares, it is noteworthy that as settlor of the Trust the initial "whereas" clause provides he is the owner of "100% of

S. DeLia Corp." as a result of the previous surrender of his shares and the shares of his sisters. It is also noteworthy that, included in the Purpose clause of the Trust is the proviso that all income generated by the Corporation be for the use, maintenance and preservation of the Lodge, and that in any event the Lodge shall not be sold.

Elis' argument fails because the primary purpose of the trust he created, namely, that Tojenka never be sold, has been totally frustrated. The fate of Tojenka presently lies with the principal corporate stockholder, Daina Bennett, and her 20,000 shares.

The Court determines the primary purpose of the Trust cannot be implemented. This situation is not correctable. Since the Court finds as a matter of law its purpose is totally frustrated there is no issue to be determined by a fact finder. See In re Homer's Estate, 80 Misc 2d 470.

The Court grants Bennett's motion for summary judgment on the first cause of action in the Complaint and declares their respective shares must be returned.

Corporate Officers are Ordered to re-issue to each of the Plaintiffs and/or their children their previously issued shares within forty-five (45) days of compliance with CPLR Rule 2220.

In light of this Decision and Order it is unnecessary to address remaining contentions in the current motion, the remaining causes of action, or counterclaims.

Your respective submissions are returned for appropriate filing.

Dated: Rome, New York

April 23rd, 2008

_________________________________________

Hon. John W. Grow

Justice of the Supreme Court