Opinion
2001-03290
Argued April 29, 2002.
September 18, 2002.
In a proceeding to determine the validity of exercises of powers of appointment over four trusts, Roberta Serota Doben, Steven Serota, Irwin H. Doben, and Arlene Harris, as Guardian Ad Litem for the infant children of Steven Serota, appeal from a decree of the Surrogate's Court, Nassau County (Radigan, S.), dated December 22, 2000, which, after a nonjury trial, found that Roberta Serota Doben's exercise of her powers of appointment in favor of her brother Arnold Marcus were valid.
Sordi Sordi, LLP, Glen Cove, N.Y. (Nicholas A. Sordi, Jr., of counsel), for appellants Roberta Serota Doben, Steven Serota, and Irwin H. Doben.
Kaye Scholer LLP, New York, N.Y. (Arlene Harris, appellant pro se of counsel), for appellant Arlene Harris, Guardian Ad Litem for the infant children of Steven Serota.
Rosenman Colin, LLP, New York, N.Y. (Joshua S. Rubenstein, Jay W. Freiberg, and Stacey B. Creem of counsel), for petitioner-respondent.
Roseman Roseman, LLP, Melville, N.Y. (Gilbert Roseman of counsel), for respondents-respondents Arnold Marcus, Bonnie Marcus, and Sloane Marcus, and Forchelli, Curto, Schwartz, Mineo, Carlino Cohn, LLP, Mineola, N.Y. (Terence Smolev of counsel), for respondent-respondent Harvey Serota (one brief filed).
McMillan, Rather, Bennett Rigano, P.C., Melville, N.Y. (Donald J. Farinacci, respondent pro se of counsel), for respondent Donald J. Farinacci, Guardian Ad Litem for the Unborn Issue of Arnold Marcus and the Issue of Harvey Serota.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.
ORDERED that the decree is affirmed, with one bill of costs payable personally by Roberta Serota Doben, Irwin H. Doben, and Steven Serota to the respondents appearing separately and filing separate briefs.
In the early 1970's, the appellant Roberta Serota Doben executed powers of appointment over four trusts in favor of her brother Arnold Marcus. The appointments were irrevocable. In 1997, Roberta exercised her power of appointment over these same trusts in favor of her husband, the appellant Irwin H. Doben, and her son, the appellant Steven Serota. Shortly thereafter, Arnold Marcus purported to exercise the powers of appointment granted to him by Roberta's earlier exercise. The trustee then commenced this proceeding to determine the validity of the various exercises.
The Surrogate's Court properly rejected the appellants' argument that Roberta's exercise of her powers of appointment in the early 1970's was invalid. The existence of a family relationship does not, per se, present a presumption of constructive fraud or undue influence. Rather, there must be evidence of other facts and circumstances showing inequality or controlling influence (see Feiden v. Feiden, 151 A.D.2d 889, 891), and here there was no such showing.
The appellants' remaining contention is without merit.
FEUERSTEIN, J.P., KRAUSMAN, LUCIANO and CRANE, JJ., concur.