Upon the following papers read on this motion to dismiss and related relief: Notice of Motion and supporting papers (1-4); Answering Affirmations and supporting papers (5-6); Replying Affirmations and supporting papers (7-10); and upon the following papers read on these motions to quash subpoenas duces tecum: Notice of Motion and supporting papers (1-13); Answering Affirmations and supporting papers (14-24); Replying Affirmations and supporting papers (25-31); as well as prior pleadings filed herein, it is

ORDERED that, the motions to quash the subpoena served upon HSBC Bank are granted; and it is further

ORDERED that, the motion to dismiss the petition seeking a restraining order and related relief under file number 2023-2034/B is granted; and it is further

ORDERED that, all examinations of the trustee pursuant to SCPA 2211 are to be completed by May 13, 2025, and that any objections are to be filed on or before June 3, 2025.

In this intermediate accounting proceeding, the court has before it four motions, one seeking to dismiss the pending petition seeking a restraining order and related relief, and three which all seek to quash a single subpoena served prior to SCPA 2211 examinations. For the reasons set forth below the motions to quash as well as the motion to dismiss the petition are granted.

Robert G. is the grantor of the G. Estate Trust (the "trust") which was established by an agreement dated November 20, 2017. David H. Barton serves as trustee. On February 29, 2024 the trustee filed an accounting covering the period of November 20, 2017 through December 31, 2023. The parties have entered into a stipulation setting forth the dates by which SCPA 2211 examinations of petitioner would be conducted and any objections should be filed.

Philippe G., Robert's son, is married to Keelin G. and they are currently involved in a divorce proceeding that was filed in Supreme Court in June of 2022. Philippe and Keelin have four children: Kolton, Keegan, Kyrie and Kiara. Kiara is a minor and a guardian ad litem has been appointed to represent her interests herein. The beneficiaries of the trust are Philippe, Keelin, and their children. Distributions are discretionary, and subject to written consent of Philippe if paid to Keelin or the children.

It appears that the trust has an ownership interest in real property located in Cold Spring Harbor (the "Manor House") which the trust bought from Wawapek Holdings, an LLC owned by Philippe and Keelin; an interest in 95Carley Avenue LLC; and has made significant investments in Axel Teknology, LLC ($8,385,000.00). The trust also owns two boats, a Steinway Piano, and 2 bank accounts. The accounting indicates that the trustee has received $26,747,230.61 in cash and assets and has a remaining balance on hand of $12,072,212.63.

In addition to the pending accounting, Keelin has filed in this court a separate miscellaneous petition related to the trust wherein she seeks an order restraining the trustee from "listing, selling, transferring, mortgaging or otherwise encumbering" a residence in Cold Spring Harbor, New York pending finalization of the pending divorce action. The court issued an order to show cause which contained language restraining the trustee from selling the Manor House [*2]until May 7, 2024. This order was extended to June 25, 2024, but not thereafter. The trustee has moved to dismiss this petition in its entirety.

Also pending before this court is an intermediate accounting in a related trust, the G. Family Trust, filed by petitioner, David H. Barton, as trustee. Phillipe G. is the grantor of the G. Family Trust, and there are several motions pending before the court in the Family Trust which are being addressed separately.

The trustee has moved, pursuant to CPLR 3211(a)(7), to dismiss the miscellaneous petition filed by Keelin wherein she seeks a restraining order, arguing that it fails to articulate a cause of action or legal theory upon which her request for relief rests, but rather merely asserts that the Manor House is intertwined with her claims to the property in the divorce proceeding. The trustee argues that this court lacks subject matter jurisdiction to adjudicate petitioner's rights under the couple's post-nuptial agreement, and thus petitioner is not entitled to injunctive relief related to same in this court.

Keelin opposes the motion to dismiss and argues that pursuant to a post-nuptial agreement dated July 27, 2018, she is entitled to a one-half ownership interest in the Manor House. Keelin asserts that Philippe improperly sold the Manor House from an LLC owned by Philippe and Keelin to the Trust, without her knowledge, in an attempt to divest her of her ownership interest. Keelin asserts that issues concerning the propriety of the acquisition and sale of the Manor House and the validity of the current ownership of the Manor House by the Estate Trust are inextricably intertwined with the pending divorce action and constitute grounds for her request to restrain the trustee of the Estate trust from selling, transferring or encumbering the Manor House pending finalization of the action for divorce.

Keelin asserts that although her petition seeks an injunction, she is also relying on the court's authority to restrict the conduct of fiduciaries to preserve the status quo until the divorce proceeding is concluded. Keelin asserts that where "the propriety of imposing a preliminary injunction is at best questionable, the court can limit or restrict the authority of fiduciaries administering estates under their jurisdiction (SCPA 209[10]), particularly where there are conflicting claims to the property to be distributed (SCPA 209 [4]). Such an application is addressed to the discretion of the court (Matter of Nadich, 1997 NYLJ LEXIS 3129)."

Keelin further argues that the this court has subject matter jurisdiction to determine matters relating to lifetime trusts pursuant to SCPA 206(6) and SCPA 2105, that her claims are against the trust, and that she wishes to pursue claims against the trustee, who she asserts has breached his fiduciary duty of prudence and impartiality by squandering trust assets for the benefit of Philippe.

The guardian ad litem has filed an affidavit in support of the motion to dismiss the petition and asks the court to appoint the Public Administrator to sell the Manor House and hold the proceeds. The guardian ad litem argues that the trustee has exercised questionable judgement in spending excessively on renovations that do not appear to have provided any value to the Manor House; by investing a significant amount of trust assets in a corporation solely owned by Philippe of which the trustee has not been able to provide a valuation; and by retaining trust assets, such as the Steinway piano and boats, that the beneficiaries are not able to utilize.

On a motion to dismiss an action pursuant to CPLR 3211(a)(7), the court must liberaly [*3]construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Minovici v. Belkin BV, 109 AD3d, 520; Palero Food Corp. V. Zucker, 186 AD3d 493). On such a motion, the court's sole inquiry is whether the facts alleged in the petition fit within any cognizable legal theory, not whether there is evidentiary support for the petition (see Leon v Martinez, 84 NY2d 83; International Oil Field Supply Services Corp. v Fadeyi, 35 AD3d 372; Thomas McGee v City of Rensselaer, 174 Misc 2d 491). In examining the sufficiency of the pleading, the court must accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff (see Pacific Carlton Development Corp. v 752 Pacific, LLC, 62 AD3d 677; Gjonlekaj v Sot, 308 AD2d 471), although mere conclusory allegations are insufficient to state a cause of action (see Mayer v Sanders, 264 AD2d 827).

Pursuant to CPLR 6301, a preliminary injunction may be granted in any action (1) where it appears that the respondent threatens or is about to do, or is doing an act in violation of the movant's rights respecting the subject of the action, and tending to render the judgment ineffectual, or (2) where the movant has demanded and would be entitled to a judgment restraining the respondent from the commission or continuance of an act, which, if committed or continued during the pendency of the actions would produce injury to the movant. A preliminary injunction shall not be granted unless the movant establishes: the likelihood of success on the merits, that irreparable injury will result in the absence of a preliminary injunction, and a balancing of the equities favors the movant (Aetna Insurance Company v. Capasso, 75 NY2d 860, 552 NYS2d 918, 552 NE2d 166). Additionally, the moving party must establish a clear right to it under the law upon undisputed facts found in the moving papers (Zanghi v. State, 204 AD2d 313, 611 NYS2d 263). Moreover, injunctive relief is not generally available where a party may be fully recompensed with a monetary award (Busters Cleaning Corp. v. Frati, 180 AD2d 705, 580 NYS2d 363).

The trustee has established his prima facie entitlement to dismissal pursuant to CPLR 3211(a)(7). Keelin's claims that Philippe improperly funneled marital assets into the trust through his father, putting the source of ownership of trust assets in question, and that Philippe improperly sold the Manor House from an LLC owned by Keelin and Philippe to the trust in violation of both the terms of the LLC agreement and the post nuptial agreement fall outside of the jurisdiction of this court. Keelin asserts the existence of a claim for the improper transfer of marital assets, which relate directly to the pending divorce proceeding in Supreme Court, as well as a possible shareholder claim, which would also be outside of the jurisdiction of this court. At this juncture, the trustee is merely a stakeholder in connection with these claims, who may have to turnover assets if Keelin is successful in her claims.

Further, petitioner has failed to demonstrate an entitlement to a preliminary injunction (see Zanghi v. State, 204 AD2d 313; CPLR 6301). Finally, this court is not inclined to use its SCPA 209 power to impose restraints on the trustee pending resolution of an action in Supreme Court. Keelin may pursue her claims that the trustee has squandered trust assets and breached his fiduciary duty in the pending accounting.

Prior to conducting the SCPA examinations, Keelin served a subpoena upon HSBC Bank [*4]seeking a variety of information. As to the documents sought, Keelin seeks information not limited to but including "[a]ll account statements concerning any HSBC account in the name of" Robert G. (Philippe's father), Philippe G., Wawapek Holdings, LLC, Axle Teknology; and, "[a]ll documents and communications concerning all financial transactions" involving Robert G., Philippe G., Wawapek Holdings LLC, Axel Teknology, Nicolas Sanders (the prior trustee of the Family Trust), and HSBC Bank Hong Kong and HSBC Bank USA. The time period for the records sought is from December 17, 2021 through the present.

The trustee, Philippe G., and Robert G. have each filed motions seeking to quash the same subpoena which was served upon HSBC Bank. The grounds upon which they seek to quash the subpoena are similar, with movants arguing that Keelin is seeking disclosure that has no bearing on the accounting filed, but rather is seeking personal bank account information and other information related to the pending divorce proceeding. Movants argue that the subpoena is so overly broad and open ended that the proper remedy is to quash same, rather than to tailor its demands.

Keelin opposes the motions to quash and argues that the documents sought are routine and non-controversial third-party bank records and will provide clarity into the funding and administration of the Family Trust. Keelin argues that the motions should be denied as movants did not comply with the Uniform Rules for the Supreme and County Courts, 22 NYCRR 202.7(a), and because movants have not met their burden of proof to show that the subpoena would cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.

In addition, Keelin opposes the motions to quash arguing that the documents sought are directly relevant to her claims. Keelin argues that she is seeking the information to verify if petitioner has violated tax regulations concerning transfers from overseas accounts. Finally, Keelin argues that the matrimonial court instructed her to seek any discovery related to the Trust in this court, and would not allow discovery concerning the trust at all in the matrimonial action. Keelin argues that Philippe has repeatedly deflected discovery regarding the trusts in the matrimonial proceeding on the grounds that any such discovery should be conducted in Surrogate's Court, and he should not be allowed to deflect disclosure by taking contrary position in this court.

To support her belief that the trusts were funded by marital assets Keelin has submitted her own affidavit wherein she asserts that she has known her father-in-law, Robert, for years, and that he has never had significant wealth, whereas Philippe has made tens of millions of dollars, and frequently traveled to Hong Kong, sometimes with Robert. Keelin states that she knew that Philippe had a Chinese bank account in Robert's name, and he had spoken about the account with her. Keelin states that she found a HSBC bank card bearing Robert's name as well as HSBC security devices in Philippe's home office, when Robert had never visited the family at that home.

The guardian ad litem has filed an affirmation stating that she supports the enforcement of any subpoenas and other discovery demands, and opposes any motion to strike such demands or for protective orders to the extent that the information sought may lead to information relevant to assessing the source and proper disposition of the assets of the Trust.

The CPLR directs that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action (CPLR 3101[a]). It is well settled that what constitutes [*5]"material and necessary" is left to the sound discretion of the trial courts and includes "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (see Allen v. Crowell-Collier Publ. Co, 21 NY2d 403, 406).

As a general rule, the standard for quashing a subpoena is whether the requested information is "utterly irrelevant to any proper inquiry" (see Kapon v. Koch, 23 NY3d 32, 38; Ferolito v. Arizona Beverages USA, LLC, 119 AD3d 642, 643; In re MacLeman, 9 Misc 3d 1119(A), citing Anheuser-Busch, Inc. v. Abrams, 71 NY2d 327, 331-332; Ayuba v. Eastman Kodak Co., Inc., 158 AD2d 641, 642, citations omitted; In re Estate of Rutherford, 26 Misc 3d 1235(A)). Although liberal disclosure is permitted, the party seeking disclosure has the burden of making a proper demand (see New York Cent. Mut. Fire Ins. Co. v. Librizzi, 106 AD3d 921).

As discussed earlier in this motion, the claims that Keelin wishes to pursue concerning the source of the trust's funding are claims between her and Philippe. A review of the subpoena reveals that it is both overly broad and seeks information which, at this juncture, does not appear to be material and necessary to the dispute before the court, specifically the accounting of the trustee for the time period of December 17, 2021 through December 27, 2023. Where, as here, such demand is improper, it is not the role of the court to prune, but to strike (see Bell v. Cobble Hill Health Ctr., Inc., 22 AD3d 660). Accordingly, the motions to quash the subpoena served upon HSBC Bank are granted.