Opinion
663 Index No. 151662/22 Case No. 2023–02864
10-03-2023
In the Matter of Lee KAYLIE, Petitioner–Appellant, v. Gloria KAYLIE, Respondent–Respondent.
Reed Smith LLP, New York (Steven Cooper of counsel), for appellant. Hochheiser & Akmal PLLC, Garden City (Marc Rogovin of counsel), for respondent.
Reed Smith LLP, New York (Steven Cooper of counsel), for appellant.
Hochheiser & Akmal PLLC, Garden City (Marc Rogovin of counsel), for respondent.
Kern, J.P., Mendez, Higgitt, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Laurence L. Love, J.), entered on or about October 26, 2022, which denied the petition for an accounting, unanimously reversed, on the law and the facts, with costs, the petition reinstated, and the matter remanded for proceedings consistent with this opinion.
Petitioner, a beneficiary of the trust underlying this proceeding, is entitled to a judicial accounting by reason of the fiduciary relationship between him and respondent, who was the trust's sole trustee from 2017 until 2021 (see Mullin v. WL Ross & Co. LLC, 173 A.D.3d 520, 522, 105 N.Y.S.3d 382 [1st Dept. 2019] ; Koppel v. Wien, Lane & Malkin, 125 A.D.2d 230, 234, 509 N.Y.S.2d 327 [1st Dept. 1986] ). The fact that respondent has returned the trust's funds with interest does not affect petitioner's right to an accounting (see Simon v. Moskowitz, 193 A.D.3d 520, 521, 141 N.Y.S.3d 842 [1st Dept. 2021] ; Ull v. Royal Car Park, LLC, 179 A.D.3d 469, 470–471, 116 N.Y.S.3d 251 [1st Dept. 2020] ). Nor does petitioner's eventual receipt of the bank statements for the trust's accounts (see Matter of Grgurev v. Licul, 203 A.D.3d 624, 625, 165 N.Y.S.3d 63 [1st Dept. 2022], lv dismissed 38 N.Y.3d 1171, 174 N.Y.S.3d 694, 195 N.E.3d 528 [2022] ).
We reject respondent's defense of unclean hands, as the conduct of which she complains was by a nonparty to this proceeding, not by petitioner (see Frymer v. Bell, 99 A.D.2d 91, 96, 472 N.Y.S.2d 622 [1st Dept. 1984] ). Furthermore, the conduct was not "immoral or unconscionable" as required for the doctrine of unclean hands ( id. ), and in any event, respondent has not shown how it injured her.
We have considered respondent's remaining contentions and find them unavailing.