Opinion
October 24, 2000.
Howard M. Rogatnick, for petitioner-respondent.
Zeb Landsman, for respondent-appellants.
Tom, J.P., Ellerin, Lerner, Andrias, JJ.
Order, Surrogate's Court, New York County (Renee Roth, S.), entered on or about April 19, 2000, which, inter alia, denied respondents-appellants' motion for partial summary judgment in this contested accounting proceeding, unanimously affirmed, without costs.
At issue is whether the conduct of petitioner bank complied with the prudent person standard, the standard applicable to the bank's performance as trustee of the subject trusts at the times of the breaches of duty alleged against the bank by respondent trust beneficiaries (see, EPTL 11- 2.2[a][1]; see also, Matter of the Estate of Janes, 90 N.Y.2d 41, 49; Matter of the Accounting of the Bank of New York, as Trustee of Discretionary Common Trust Fund "E", 35 N.Y.2d 512, 518-519). The Surrogate properly denied respondent's motion for summary judgment. Although it might appear with the benefit of hindsight, that the assets of the subject trusts might have been more profitably invested by petitioner, "a mere error of investment judgment [does not] mandate a surcharge. Our courts do not demand investment infallibility, nor hold a trustee to prescience in investment decisions" (Matter of the Accounting of the Bank of New York, as Trustee of Discretionary Common Trust Fund "E", supra, at 519).
We have considered respondents' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.