Surrogate's Court, Monroe County, April 16, 2023

Bond, Schoeneck & King, PLLC (Edward C. Radin, Brian Laudadio and Kathleen H. McGraw of counsel) for Tompkins Community Bank, formerly known as Tompkins Trust Company, petitioner and successor trustee.

Pullano & Farrow PLLC (Christian Valentino of counsel) for Robert W. Hurlbut, respondent and objectant.

Harris Beach PLLC (Kelly S. Foss and Kyle D. Gooch of counsel) for Christine Owen, respondent and objectant.

Robert H. Hurlbut passed away on March 4, 2013, survived by his spouse, Barbara Hurlbut, and two adult children, Robert W. Hurlbut and Christine Owen. Article V of the decedent's probated will created a marital trust for the benefit of Barbara and letters of trusteeship were issued to Mary E. Ross and Jerald J. Rotenberg. By way of this court's order dated May 20, 2020, the co-trustees were allowed to resign and, after having accounted for the period from March 4, 2013, to December 31, 2015, were discharged for that time period only. In that same order, the court appointed Tompkins Trust Company (now known as Tompkins Community Bank) as successor trustee of the marital trust and letters of trusteeship were issued on June 26, 2020.

Tompkins Community Bank (hereinafter referred to as Tompkins) petitions for the judicial settlement of its intermediate account for the period from June 26, 2020, through August 21, 2021, and for the allocation to the marital trust the federal and New York estate tax due as a result of Barbara Hurlbut's passing together with incurred expenses relative to those estate tax filings. Additionally, Tompkins seeks advice and direction{**79 Misc 3d at 712} regarding a claim for repayment of legal fees by Robert W. Hurlbut, whether a 2014 Cadillac titled to Barbara Hurlbut is a trust asset, and whether Tompkins should pursue as successor trustee the claims asserted by Christine Owen and Robert W. Hurlbut against each other in parallel proceedings before this court. Tompkins also seeks approval of trustee commissions in the amount of $144,000 per annum (totaling $199,233 for the accounting period, $144,000 for 2019 and $55,233 for the period from Jan. 1, 2020, through May 19, 2020) and payment of legal fees totaling $110,835.

Robert W. Hurlbut (hereinafter referred to as Robert) filed objections to the account wherein he alleges the intermediate account cannot be accurate insofar as the former co-trustees never accounted from December 31, 2015, to June 26, 2020, when Tompkins assumed its role as successor trustee. Robert states the account does not adequately set forth or properly value various legal entities, such as RHH Mendon Properties, Inc. and ROHM Services Corporation that are either wholly or partially owned by the marital trust. He also alleges the account fails to [*2]include real property owned by the trust and does not account for property taxes for certain parcels and overvalues another parcel located at 200 Sheldon Road, Honeoye Falls, New York by more than $200,000. Robert avers that the account does not disclose the impact of a purchase and sale agreement he entered with his sister, Christine Owen, and its impact on promissory notes held by the trust and the final distribution of the remainder, which is alleged to be a significant component of the trust. Robert also avers the account fails to set forth the claims he has asserted against Christine Owen involving payments she received from the marital trust that allegedly could or should be pursued by Tompkins. Robert objects to the payment of annual commissions and alleges the legal fees sought by Tompkins are excessive and unreasonable and contends there should be no payment of outstanding commissions to the prior co-trustees for their failure to pursue claims against his sister.

With regards to the advice and direction sought by Tompkins, Robert objects to the allocation of the estate tax expenses to the marital trust, agrees that the 2014 Cadillac is an asset of the estate of Barbara Hurlbut and asserts that Tompkins should pursue claims against Christine Owen for alleged excessive spending of trust monies. Robert states he has repaid the trust for the monies applied to his legal fees and there is no{**79 Misc 3d at 713} valid claim against him for those funds. Finally, he argues that Tompkins should not be authorized to pursue claims against himself as those claims and allegations raised by his sister have no basis in law or fact.

Christine Owen (hereinafter referred to as Christine) also filed objections to the interim account alleging it is inaccurate and/or incomplete insofar as it does not contain an accurate valuation of ROHM Services Corporation (which is wholly owned by the trust) and does not account for proceeds from the sale of real property owned by the trust at 21 Mendon Center Road, which was titled in the name of RHH Mendon, an entity owned by the trust.

Regarding the advice and direction sought by Tompkins, Christine avers that Tompkins is duty bound as trustee to pursue legal claims against Robert, including those related to ROHM Services Corporation and sale proceeds from 21 Mendon Center Road. Christine also seeks to have Tompkins recoup interest on trust monies used by Robert to pay his legal fees. Christine consents to the allocation of estate taxes and expenses as proposed by Tompkins and the exclusion of the Cadillac as a trust asset, and approves the payment of commissions in the amount of $144,000; however she states payment of commissions to the former co-trustees is unwarranted and not properly before the court. Additionally, Christine seeks the court's direction that Tompkins forgo the claims alleged against her by Robert as she argues they have already been rejected by this court.

Tompkins has moved for an order granting summary judgment and dismissing the objections filed by Robert and Christine in their entireties and granting an order settling its intermediate account and the additional relief requested in its petition.

Both Robert and Christine have filed papers in opposition. In addition, Christine has cross-moved for a stay of this proceeding, though no notice of motion was served.

The proponent of a summary judgment motion 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. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-{**79 Misc 3d at 714}Fox Film Corp., 3 NY2d 395, 404 [1957].) Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York Univ. Med. [*3]Ctr. at 853.) Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Zuckerman v City of New York at 562.) Conclusory and unsubstantiated arguments are not sufficient to raise a triable issue of fact and will not defeat a motion for summary judgment. (Matter of Neuman, 14 AD3d 567 [2d Dept 2005].) However, the movant's proof must be scrutinized "in the light most favorable to the party opposing the motion." (Goldstein v County of Monroe, 77 AD2d 232, 236 [4th Dept 1980]; Nojaim Bros. v CNA Ins. Cos., 113 AD2d 109, 114 [4th Dept 1985].)

In an accounting proceeding, the party submitting the account has the ultimate burden of demonstrating that they have fully accounted for all of the assets belonging to a decedent's estate (see Matter of Taylor, 79 AD3d 766 [2d Dept 2010]; Matter of Heino, 73 AD3d 1062, 1063 [2d Dept 2010]; Matter of Tract, 284 AD2d 543 [2d Dept 2001]). Initially, it is not disputed that Tompkins met its prima facie burden with respect to the branch of its motion that sought summary judgment settling its accounting by submitting a verified accounting petition, a facially complete accounting and affidavits of the accounting parties (see Matter of Crane, 100 AD3d 626, 628 [2d Dept 2012]; Matter of Spiak, 208 AD3d 1482, 1484 [3d Dept 2022]). The objectants bear the burden of coming forward with evidence to establish that the account is inaccurate or incomplete and upon satisfaction of that showing, Tompkins, as the accounting party, must prove, by a fair preponderance of the evidence, that its account is accurate and complete. (Matter of Heino, 73 AD3d at 1063, quoting Matter of Tract, 284 AD2d at 543; see Matter of Campione, 58 AD3d 1032, 1034 [3d Dept 2009]; Matter of Schnare, 191 AD2d 859, 860 [3d Dept 1993]; Matter of Taylor, 79 AD3d 766, 767 [2d Dept 2010].)

Both Robert and Christine, in a rare occasion of agreement in the context of several proceedings before this court involving the marital trust, both argue the intermediate account is inaccurate and cannot be remedied until the prior co-trustees settle their own account for the 4½-year period preceding Tompkins' appointment as successor trustee.{**79 Misc 3d at 715}

Tompkins as successor trustee "is only responsible for the assets which come into his [or her] hands, and has no particular legal duty to seek an accounting from his [or her] predecessors." (Matter of William M. Kline Revocable Trust, 196 Misc 2d 66, 75 [Sur Ct, Fulton County 2003]; Pfeffer v Lehmann, 255 App Div 220 [2d Dept 1938].) Although a successor trustee may be liable for failure to proceed against a predecessor trustee for breach of duty to the trust, it is within the discretion of the successor trustee to determine whether to exercise his or her power to " 'contest, compromise or otherwise settle' claims in favor of the trust" pursuant to EPTL 11-1.1 (b) (13). (Matter of White [Green], 128 AD3d 1366, 1368 [4th Dept 2015].) A successor trustee has the option of affirming or disaffirming the acts of his predecessor. (Matter of Gerken, 142 Misc 271, 273 [Sur Ct, Kings County 1931].) Indeed, the capacity of a successor trustee to bring an action against a predecessor trustee has been long established. (Macy v Williams, 8 NYS 658 [Sup Ct, Gen Term, 2d Dept 1890], affd without op 125 NY 767 [1891]; In re Alpert, 243 NYLJ 17, 2010 NY Misc LEXIS 3262, *7-8 [Sur Ct, NY County, Jan. 27, 2010].)

Both Robert and Christine assert that the claims arising out of administration of the trust prior to the appointment of Tompkins are not properly accounted for and, depending on the outcome of other parallel proceedings, may need to be pursued by Tompkins as successor [*4]trustee. A successor trustee who "neglects to take proper steps to redress a breach of trust committed by the predecessor" is liable to the trust beneficiary. (Bank of N.Y. v New Jersey Tit. Guar. & Trust Co., 256 App Div 609, 611 [1st Dept 1939].)

Moreover, the valuation of ROHM Services Corporation (hereinafter referred to as ROHM), an asset of the trust, is listed in Schedule A of the interim account at $959,000; however Robert stated during a deposition on June 24, 2020, that ROHM was defunct in January of 2020, some six months prior to Tompkins' appointment. (Objectant Christine Owen's exhibit B at 129, lines 7-14.) In a letter dated January 14, 2022, Robert's counsel confirmed that ROHM, while not formally dissolved at the time of the letter, "no longer has any employees and does not operate in any manner." (Objectant Christine Owen's exhibit O.) Additionally, Tompkins relied on valuations prepared by Stonebridge Business Partnership which concluded that ROHM was worth $737,000, which does not correspond to the value assigned by Tompkins in Schedule{**79 Misc 3d at 716} A of its intermediate account. (Petitioner's Radin affirmation at 4; petitioner's exhibit H at 1.)

Tompkins argues the objection to the valuation of ROHM is moot as all outstanding shares have been distributed in kind to both the objectants and further alleges it never was involved in the management of ROHM and avers article XIII of the decedent's will allows Tompkins to treat ROHM as an entity separate from the trust and requires only that it "report the earnings and condition of the business in accordance with standard corporate accounting practice." (Decedent's will.) However, despite that limitation, ROHM remains an asset of the trust that must be accurately accounted for and its valuations are presently inconsistent. Christine alleges the management of ROHM by Robert and the prior co-trustees has dramatically impacted the valuation and is the basis of her claims in parallel proceedings that may evolve into claims to be prosecuted by the marital trust.

Christine also argues the valuation of RHH Mendon is inaccurate as Schedule A of the account states the value as $3,370,000; however the Stonebridge valuation for RHH Mendon is $2,800,588. (Petitioner's Radin affirmation at 4; petitioner's exhibit I at 32.) Moreover, the Stonebridge valuation lists real estate located at 21 Mendon Center Road as an asset of RHH Mendon which was appraised by John P. Rynne at $365,000, yet Christine asserts that parcel was sold in August of 2020 for $289,000 and the account fails to divulge the location of the sale proceeds and whether Tompkins investigated why the parcel was sold for less than the appraised value. (Petitioner's exhibit I at 5; objectant Christine's exhibit O.)

[1] Based on the above, there are questions of fact regarding the accuracy of the intermediate account and therefore, the branch of Tompkins' motion seeking to dismiss the objections to the interim account as being incomplete and inaccurate is denied.

Tompkins has also moved to dismiss Robert's objection to the marital trust's payment of expenses related to the federal and New York State estate tax returns in Barbara Hurlbut's estate. These expenses are not listed in the interim account; however, Tompkins states it will supplement the account to specifically allocate such expenses upon receipt from the estate of Barbara Hurlbut.

EPTL 2-1.8 (h) provides the court with the authority to allocate against "non-testamentary property" of an equitable {**79 Misc 3d at 717}share of the expenses in two situations: (1) "in connection with the determination of the tax and the apportionment thereof . . . [and (2)] services . . . resulting in the exclusion from the gross taxable estate of any non-testamentary property or interests created by any non-testamentary instrument." (Matter of Warmsley, 144 Misc 2d 809, 810 [Sur Ct, NY County 1989].)[*5]

[2] While Robert agrees that the estate tax is to be paid by the marital trust, he argues that there is a question of fact as to whether the alleged expenses benefited the marital trust or the estate. Without a review of those efforts and expenses incurred by the estate, Robert argues the court cannot equitably allocate those expenses to the marital trust. (Affirmation of Robert's counsel ¶¶ 28-32.) Tompkins asserts that the expenses are properly allocated to the marital trust as there would be no estate tax proceedings in Barbara's estate but for the existence of the marital trust. While those expenses are not disclosed in the interim account, it is apparent that they were incurred because the mechanics of the marital trust imposed an estate tax liability on Barbara's estate. The statutory scheme of EPTL 2-1.8 (h) contemplates that the court will act to order an apportionment whenever the existing circumstances disclose the failure to do so will place an unjust or disproportionate burden on the one side and give the other an unwarranted gain or advantage. (Matter of Ratta, 128 Misc 2d 683, 685 [Sur Ct, Nassau County 1985].) It would be inequitable to have the beneficiary of Barbara's estate bear those expenses as the imposition of the estate taxes is directly attributed to the marital trust. Once presented, the extent of those expenses will be closely scrutinized by the court and after judicial review, those expenses will be borne by the marital trust.

The branch of Tompkins' motion dismissing Robert's objections to the payment by the marital trust of estate tax expenses incurred by the estate of Barbara Hurlbut is granted.

In offering its intermediate account, Tompkins seeks approval of commissions in the amount of $144,000 per annum as successor trustee of the marital trust. While Christine does not object to the amount requested, Robert objects to the payment of that amount as he never agreed to that amount nor was it previously approved by the court when Tompkins was appointed as successor trustee. (Affirmation of Christine's counsel [Mar. 17, 2022] ¶ 37; Robert's objections ¶ 38.) Tompkins moves to dismiss Robert's objection to the payment of the commissions{**79 Misc 3d at 718} and argues the commissions were calculated using the same methodology used by the prior co-trustees (which Robert allegedly had agreed to) and are reasonable as a matter of law.

SCPA 2312 (2) allows a corporate trustee to claim reasonable compensation as a matter of right; however it is the trustee's burden to prove reasonableness of its application. (Matter of Prankard, 245 AD2d 566 [2d Dept 1997]; SCPA 2312.)

To enable a court to determine the reasonableness of commissions of a corporate trustee under SCPA 2312, petitioner must furnish detailed information about the trust, actions of the trustee, and the administration of the particular trust so that the court can consider such relevant factors as trust size, character of work involved, responsibilities involved, results achieved, knowledge, skill and judgment required and used, time and services required, amount of risk, manner and promptness of performance of the trustee's duties and responsibilities, unusual or complex decisions required, and any special skills or experience utilized; thus, a corporate trustee's commissions would be determined to be amounts equal to statutory commissions of an individual trustee where no evidence was offered in support of requested commissions other than the corporate trustee's fee schedule. (Matter of McDonald, 138 Misc 2d 577 [Sur Ct, Westchester County 1988].)

Tompkins states that after conversations with Christine's counsel, it agreed to be compensated at the same rate as the prior co-trustees resulting in a $144,000 annual commission despite Tompkins' own standard commission schedule that would set the annual commissions at more than twice that amount. (Petitioner's aff of Pinker ¶¶ 4-5.) Tompkins argues while its commissions are heavily discounted, the services it has provided as successor trustee have been [*6]atypical and complicated by the absence of a final account by the prior co-trustees, intensely combative remainder beneficiaries, and uncooperative custodians of trust assets and records. Ana Pinker, a trust officer at Tompkins, sets forth in great detail the extraordinary work conducted by a team of seven Tompkins employees. Services provided by Tompkins include (but are not limited to) asset collection, management of real property, preparing fiduciary and partnership tax returns, collection of payments on 23 of 27 notes held by the trust, ascertaining and marshalling the assets of several entities owned by the trust including ROHM and RHH Mendon Properties, and responding to voluminous discovery demands in various{**79 Misc 3d at 719} proceedings involving the administration of the trust prior to its appointment as successor trustee. (Petitioner's aff of Pinker ¶¶ 9-11.)

[3] Robert asserts he has concerns about Tompkins' actions and omissions in the administration of the trust; however he fails to elaborate, nor does he offer any evidence that the requested commissions are disproportionate to the work performed. That Robert was not a party to any agreement to have Tompkins serve at the same commission rate of its predecessors is of no consequence as the court is the arbiter of reasonableness of the annual commissions sought by Tompkins. (Matter of McDonald, 138 Misc 2d 577 [Sur Ct, Westchester County 1988]; SCPA 2312 [2].) Given the herculean efforts of Tompkins and considering the complexity of administrating the trust, which demands both extensive time and resources, this court finds the requested annual commissions of $144,000 to be exceedingly reasonable. (McDonald at 580; Matter of Prankard, 245 AD2d 566 [2d Dept 1997].) Insofar as some of the objections to the interim account have survived Tompkins' motion for summary judgment, the court will allow for the commissions as requested. (See SCPA 2114; Estate of Leona M. Helmsley, NYLJ, Aug. 20, 2019 at 22, col 3, 2019 NYLJ LEXIS 2997 [Sur Ct, NY County 2019].)

The motion to dismiss the objections to the commissions due to Tompkins is granted.

Tompkins also seeks to dismiss Robert's objection to the attorney fees requested in the amount of $109,026. Robert asserts there is a question of fact as to actions and omissions that should be considered by the court when reviewing Tompkins' legal fees and takes umbrage to the $120 charges to Westlaw that are set forth as disbursements, which total $1,809.41. Christine has no objection to the fees or disbursements charged to the trust.

Even though some objections remain against the intermediate account, this court has the authority "to fix and determine the compensation of an attorney for services rendered to [a fiduciary]" without having to settle the account. (Matter of Rosenberg, 263 NY 357, 560 [1934]; SCPA 2210.)

While there is no hard-and-fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his authority "with reason, proper discretion and not arbitrarily." (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of Wilhelm, 88 AD2d 6, 11-12 [4th{**79 Misc 3d at 720} Dept 1982].) When determining the reasonableness of a legal fee, there are several well-recognized guidelines including: "the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained." (Matter of Potts, 213 App Div 59, 62 [4th Dept 1925]; Matter of Freeman, 34 NY2d 1, 9 [1974]; Matter of Patchin, 106 AD2d 730, 731-732 [3d Dept 1984].)

[4] Counsel for Tompkins has provided a 15-page invoice for its legal services provided to Tompkins during the accounting period. (Affirmation of Radin, exhibit N.) Those invoices reflect that the attorneys for Tompkins have expended 256.9 hours of time in their representation of the [*7]trustee in both the administration of the trust and in various proceedings before this court relative to the trust. Taking the time billed and the fee sought, the billing rate is approximately $424 per hour and the compensation sought is .22% of the gross value of the trust as reported in the summary statement of the intermediate account. Considering the breadth of representation provided to the trustee across several proceedings involving the marital trust (there are 11 other ancillary proceedings involving the trust, Christine, and Robert) as evidenced by the exhibits attached to the accounting; the complexity of the issues confronted by Tompkins from the moment it was appointed as successor trustee; the size of the fee relative to the gross value of the trust; the skill and reputation of the counsel; and Tompkins' ability (with the assistance of its counsel) to administer the trust under difficult and strained circumstances, the fee requested has been well earned. (Matter of Potts, 213 App Div 59, 62 [4th Dept 1925]; Matter of Freeman, 34 NY2d 1, 9 [1974].) Robert has failed to provide any evidence to support his nebulous claim of errors and omissions by counsel for Tompkins. (Fried v Bower & Gardner, 46 NY2d 765 [1978].)

The motion to dismiss the objections to the legal fees sought is granted.

Tompkins also seeks advice and direction regarding whether to pursue alleged claims made by Christine against Robert, and Robert against Christine, for misappropriation of trust assets. By way of background, the former co-trustees executed powers of attorney in 2014 to both Robert and Christine to effectuate the day-to-day operations of the trust. Subsequently, the co-trustees, Robert, and Christine entered into an agreement to place parameters on trust expenditures. This unconventional{**79 Misc 3d at 721} arrangement resulted in several allegations between Christine and Robert regarding the management of the trust's assets.

Robert's claim against Christine stems from a memorandum of understanding that sought to cap the expenditures by Christine to support Barbara Hurlbut, the income beneficiary of the trust. (Robert's objections ¶ 34.) Christine alleges this claim has already been decided by this court as Robert brought a proceeding in 2019 seeking to surcharge Christine $717,851.33 for a breach of fiduciary duty as agent for the former co-trustees. However, her interpretation of the court's decision and order on January 25, 2022, is misplaced as the court opined that while the net income of the trust was payable to Barbara and there was no allegation that it was not applied for her benefit, the reasonableness of the amount paid out to Caring Hearts (a care provider owned by Christine) could not be determined at that time and the former co-trustees bore the ultimate responsibility to oversee such spending.

Christine's claims against Robert involve ROHM, which was created by the decedent to provide administrative support for the multiple nursing homes he owned. ROHM became an asset of the trust once it passed through the decedent's estate and was valued at $959,000 in 2019, yet it was declared by Robert to be defunct in January of 2020. (Affirmation of Christine's counsel [Mar. 17, 2022] exhibit F, exhibit B at 129, lines 7-23.) Christine alleges Robert appropriated ROHM, a trust asset, and converted it into a separate entity, Hurlbut Health Consulting, that is owned and/or controlled by Robert, without any compensation to the trust. It is this claim, the alleged conversion of a trust asset, that Christine argues Tompkins should pursue against Robert.

Confronted with the prospect of suing against trust beneficiaries, Tompkins as successor trustee seeks direction of this court as to its obligation to pursue those claims. Tompkins states these claims are being litigated in the compel account proceeding brought by Christine against Robert and are best suited to be resolved in the anticipated judicial settlement of the former co-trustees' account. Tompkins also argues it is unreasonable to pursue these claims based on the expense and risk involved.

Both Robert and Christine argue that their claims should be pursued by Tompkins. Robert states that Christine violated the memorandum of understanding that capped the monthly expenses{**79 Misc 3d at 722} paid for Barbara's care and Tompkins should reclaim those overages from Christine. While Tompkins asserts it made a prudent decision to not pursue that claim against Christine, Robert alleges there is a question of fact as to Tompkins' opinion that should be expounded upon in depositions.

Christine argues that Tompkins cannot avert its responsibility to pursue the claims just because they accrued prior to its appointment as successor trustee. Additionally, Christine states in the event she is unable to pursue her claims against Robert as a de facto trustee, or the former co-trustees, she may bring a claim against Tompkins for allowing those claims to expire under any applicable statutes of limitation.

[5] Under SCPA 2107 (2), a fiduciary may petition for advice and direction from the court to include "extraordinary circumstances such as complex valuation issues, or tax elections, or where there is conflict among interested parties." Substantial compliance with the authorization so given relieves the fiduciary from any objection that the trust suffered on account of adhering to the court's direction. The court may entertain these proceedings in its discretion and courts are generally reluctant to grant petitions for advice and direction where to do so would merely substitute the court's own business judgment for that of the fiduciary. (Matter of Goldstein, NYLJ, Mar. 23, 1999 at 29, 1999 NYLJ LEXIS 735 [Sur Ct, NY County 1999].) As successor trustee, Tompkins is not merely a ministerial agent and its administration and disposition of the trust assets, including the claims asserted by Robert and Christine, are wholly matters of business judgment to be exercised by Tompkins. "The courts have neither the duty nor the authority to exercise the business judgment which is imposed upon fiduciaries." (Matter of Bourne, 22 Misc 2d 681, 685 [Sur Ct, NY County 1960], citing City Bank Farmers Trust Co. v Smith, 238 App Div 742 [1st Dept 1933], affd 263 NY 292 [1934].) The administration of the trust requires Tompkins as successor trustee to exercise its judgment and discretion in deciding whether to pursue the claims. Certainly, "the Surrogate has power to review that discretion, but not to substitute his own discretion for the discretion of those upon whom the duty has been cast of settling the affairs of the estate." (Matter of Leopold, 259 NY 274, 277 [1932].)

The papers have not set forth a compelling reason for this court to interfere with Tompkins' discretionary powers as successor trustee or to substitute its judgment for Tompkins.{**79 Misc 3d at 723} (SCPA 2107 [2]; Matter of Leopold, 259 NY 274 [1932]; Matter of Bourne, 22 Misc 2d 681 [Sur Ct, NY County 1960], mod & affd 11 AD2d 128 [1st Dept 1960], affd 8 NY2d 1041 [1960]; Matter of Tannenbaum, 20 AD2d 808 [2d Dept 1964].) Once appointed as successor trustee, Tompkins' responsibilities with respect to the trust sprung into being and Tompkins is charged with the duty to reduce the trust res to its possession. (Matter of Brunner, 26 AD2d 838, 839 [2d Dept 1966].) The trustee is also under a duty to the beneficiaries to take reasonable steps to realize on claims which it holds in trust. (Restatement [Second] of Trusts § 177; Frontier Excavating v Sovereign Constr. Co., 30 AD2d 487, 490 [4th Dept 1968]; Matter of Herrmann, 127 AD2d 999 [4th Dept 1987].)

As such, the motion to dismiss the objections relative to Tompkins' application for advice and direction as to the prosecution of the alleged claims against Robert and Christine and whether to pursue interest on the recouped trust monies used by Robert for his legal fees is denied. [*8]Furthermore, the branch of Tompkins' petition for advice and direction as to whether to pursue the claims asserted by Christine and Robert is dismissed without prejudice to renew. (Matter of Hanna, 119 Misc 285 [Sur Ct, Westchester County 1922]; Arnstein v Price, 285 App Div 557, 559 [2d Dept 1955]; Matter of McGuire, NYLJ, Sept. 7, 2021 at 17, col 2, 2021 NYLJ LEXIS 890 [Sur Ct, Erie County 2021].)

Christine's cross-motion for a stay of the proceedings is dismissed as it was not accompanied by a notice of motion as required by CPLR 2215.