JPMorgan Chase Bank, N.A. v. Smith

188 A.D.3d 1214

137 N.Y.S.3d 122

In the Matter of JPMORGAN CHASE BANK, N.A., etc., respondent,

v.Russell SMITH, et al., appellants.

2017–04925

2017–05121

Index No. 27940/08

Supreme Court, Appellate Division, Second Department, New York.

Argued - November 19, 2019

November 25, 2020

Russell Smith, Smithtown, NY, appellant pro se.

Marisa Falero, Brooklyn, NY, for appellants Patricia Downs and Barbara Perry.

Hahn & Hessen LLP, New York, NY (Zachary G. Newman and Stephen J. Grable of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding to judicially settle an account, the objectants appeal from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 27, 2017, and (2) an order of the same court (Genine D. Edwards, J.) dated April 4, 2017. The order dated March 27, 2017, insofar as appealed from, denied the objectants' cross motion, made jointly with nonparty Lisa Kyle, to compel compliance with subpoenas served upon certain nonparties.

The order dated April 4, 2017, insofar as appealed from, granted that branch of the petitioner's cross motion which was pursuant to 22 NYCRR 130–1.1(a) for an award of costs and attorneys' fees against the objectants and their counsel, nonparty Marisa Falero, and nonparty Lisa Kyle and directed a hearing to determine the amount of the award.

ORDERED that the order dated March 27, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from the order dated April 4, 2017, is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the petitioner.

The appeal from the order dated April 4, 2017, must be dismissed because the portion of that order appealed from was superseded by a money judgment of the Supreme Court, Kings County, dated March 15, 2018. The issues raised on the appeal from the order dated April 4, 2017, are brought up for review and have been considered on the related appeal from the money judgment ( Matter of JPMorgan Chase Bank, N.A., 188 A.D.3d 1211, 137 N.Y.S.3d 96 [Appellate Division Docket No. 2018–00736 ; decided herewith] ).

In October 2008, the petitioner, JPMorgan Chase Bank, NA (hereinafter JPMorgan), commenced this proceeding to judicially settle a trust account. This proceeding was related to a proceeding commenced pursuant to Mental Hygiene Law article 81 for the appointment of a guardian for the personal needs and property management of an alleged incapacitated person, who was the last income beneficiary of the trust (hereinafter underlying guardianship proceeding). The underlying guardianship proceeding was entitled Matter of Marion C.W. (Lisa K.), and had been commenced in the Supreme Court, Kings County, under Index No. 100303/07. Russell Smith, Patricia Downs, and Barbara Perry (hereinafter collectively the objectants), the petitioners in the underlying guardianship proceeding, and remainder beneficiaries of the trust, are the objectants in this proceeding. Nonparty Lisa Kyle was also a petitioner in the underlying guardianship proceeding.

In an order dated November 2, 2012, in the underlying guardianship proceeding, the Supreme Court, among other things, granted that branch of JPMorgan's cross motion which was to enjoin the objectants and Kyle from, inter alia, filing further motions or commencing new proceedings regarding the alleged incapacitated person or the trust without leave of the court (hereinafter the filing injunction). This Court, inter alia, affirmed so much of the November 2, 2012 order as granted that branch of JPMorgan's cross motion which was for the filing injunction (see Matter of Marion C.W. [Lisa K.], 135 A.D.3d 777, 779, 24 N.Y.S.3d 665 ). In an order dated May 26, 2016, the Supreme Court reminded the objectants that the filing injunction was "in full force and effect."

Thereafter, in February 2017, in this proceeding, the objectants served subpoenas on certain nonparties. JPMorgan moved, inter alia, to quash the subpoenas as untimely. In response, the objectants and Kyle cross-moved to compel compliance with the subpoenas. In an order dated March 27, 2017, the Supreme Court, among other things, denied the cross motion of the objectants and Kyle on the ground that they violated the filing injunction.

We agree with the Supreme Court's determination to deny the...