In re the Accounting of Finley , 58 A.D.2d 759 ( 1977 )

In the Matter of the Accounting of Leon Finley, as Trustee, under a Trust Made by Jacques L. Stern. Leon Finley, Respondent-Appellant; Jacques L. Stern, Appellant-Respondent, and Jacques F. Stern et al., Appellants.

Order, Supreme Court, New York County, entered December 16, 1976, unanimously affirmed, without costs and without disbursements. In 1957, Stern conveyed into trust, with Finley, his attorney, as trustee, a two third’s interest in premises known as 128 Central Park South. Also, at that time, Stern conveyed to Finley a one-third interest in the property in fee simple. After 16 years during which no interim accounts were rendered, the trustee sought approval of a final accounting and discharge. Three and one-half years after filing his original petition and 17 months after filing a supplementary petition, Finley moved to settle his first and final judicial account. Stern cross-moved for leave to extend his time to submit objections. Special Term granted Stern’s motion, permitting objections to be filed within 30 days of publication of its decision. Finley’s application to settle his account was held in abeyance. Citing the complex history of this trust, complicated by claims of Stern’s incompetence and the 16-year hiatus between creation of the trust and the filing of the petition for a final account, Special Term rejected the application of strict rules governing relief from defaults. It appears to us the court acted properly in permitting the late filing of objections. The final accounting has been pending for some time, and during its pendency it was well known that objections would be filed. In fact, Finley’s petition raised the issue of Stern’s competence, and while Finley may not have supported the determination to hold the final accounting in abeyance until Stern’s mental status was resolved, he did not take steps to enter a default. Since counsel for Finley was personally familiar with the reasons for delay, and' the reasons for the proposed objections were attached to the papers, which set forth in detail the portions of the account in issue, Special Term did not abuse its discretion in relaxing the rules for formal submission to vacate a default. Any problems Finley may have in his defense of the objections would be more attributable to his waiting 16 years to account, than to the delay attributable to Stern. Consistently therewith, the application to settle the trustee’s account was held in abeyance. The cross motion to consolidate this motion with a pending plenary action was rendered moot when the complaint in the plenary action was dismissed. Concur—Birns, J. P., Evans, Capozzoli and Markewich, JJ.