Opinion
2012-03-29
Arthur F. TSAVARIS, etc., Plaintiff–Appellant, v. Frank G. TSAVARIS, et al., Defendants–Respondents.
Scoppetta Seiff Kretz & Abercrombie, New York (Eric A. Seiff of counsel), for appellant. Jeffrey I. Baum & Associates, P.C., Garden City (Jeffrey I. Baum of counsel), for respondents.
Scoppetta Seiff Kretz & Abercrombie, New York (Eric A. Seiff of counsel), for appellant. Jeffrey I. Baum & Associates, P.C., Garden City (Jeffrey I. Baum of counsel), for respondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered October 7, 2011, which, to the extent appealable, denied plaintiff's motion for renewal of a prior motion to remove defendants from their positions as co-trustees of the Josephine Tsavaris Irrevocable Trust, unanimously affirmed, without costs. Appeal from the foregoing order, to the extent it denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.
Plaintiff's claim that he did not know that the basement unit in the building owned by the trust had been rented, allegedly in violation of the trust agreement, does not constitute “reasonable justification” for his failure to present that fact on the prior motion, given his role as a fiduciary and his unfettered access to the building ( see CPLR 2221[e]; Henry v. Peguero, 72 A.D.3d 600, 602, 900 N.Y.S.2d 49 [2010], appeal dismissed 15 N.Y.3d 820, 908 N.Y.S.2d 152, 934 N.E.2d 886 [2010] ). In any event, the motion court correctly found that the “new” evidence would not have changed the prior determination. The act of renting the unit did not constitute a breach of loyalty to the trust ( see Matter of Duke, 87 N.Y.2d 465, 471–472, 475–476, 640 N.Y.S.2d 446, 663 N.E.2d 602 [1996] ).
The denial of a motion to reargue is not appealable ( Prime Income Asset Mgt., Inc. v. American Real Estate Holdings L.P., 82 A.D.3d 550, 551, 918 N.Y.S.2d 467 [2011], lv. denied 17 N.Y.3d 705, 929 N.Y.S.2d 96, 952 N.E.2d 1091 [2011] ).
We have considered plaintiff's remaining arguments and find them unavailing.