their resulting lack of standing; and (2) dismissing those claims of Brent and Steven that sought to void the trust amendments based on lack of mental capacity. The Court denied respondent's motion to dismiss the petition as to the claims of Brent and Steven in all other respects, finding that there were questions of fact that precluded summary judgment dismissing the undue influence and fraud claims, including whether a confidential relationship existed between decedent and respondent (see Matter of Kosmo Family Trust, 72 Misc.3d 1214 [A] [Sur Ct, Albany County 2021], affd 207 A.D.3d 934 [3d Dept 2022]). Respondent appealed the Court's July 2021 decision and order to the Appellate Division, Third Department.
He argued the new cases "clarified the issue of whether it is considered financial elder abuse when a defendant uses undue influence to cause an elderly person to change their will or trust in favor of the defendant, and at the same time disinherit the plaintiff." Alexandros maintained that in each new case-White v. Wear (2022) 76 Cal.App.5th 24, Matter of Kosmo Family Trust (N.Y.App.Div. 2022) 207 A.D.3d 934, Ring v. Harmon (2021) 72 Cal.App.5th 844 and Royals v. Lu (2022) 81 Cal.App.5th 328, 353-disinherited beneficiaries had standing to sue for financial elder abuse, giving him standing to maintain such a cause of action. He argued that even if his motion did not comply with Code of Civil Procedure section 1008, the court had inherent authority to correct its errors.
Respondents' contention that petitioner lacks standing because the trusts of which he was a beneficiary (the Simon Trust and the Sandra Trust) have been decanted into another trust (the SY and SY Trust), of which he is not a beneficiary, does not warrant CPLR 3211 dismissal (see CPLR 7703; Surrogate's Court Procedure Act § 103[39]; Matter of Kosmo Family Trust, 72 Misc.3d 1214 [A], 2021 NY Slip Op 50745[U], *3 [Sur Ct, Albany County 2021], affd 207 A.D.3d 934 [3d Dept 2022]; see also Matter of Morse, 177 Misc.2d 43, 46 [Sur Ct, NY County 1998]).
Order, same court and Justice, entered on or about September 8, 2023, which, insofar as appealed from, denied respondents’ motion to dismiss the petition under index no. 152809/23 pursuant to CPLR 3211(a)(1), (3), (7), and (10) and granted petitioner’s cross-motion to amend the petition, unanimously affirmed, without costs. [1] Respondents’ contention that petitioner lacks standing because the trusts of which he was a beneficiary (the Simon Trust and the Sandra Trust) have been decanted into another trust (the SY and SY Trust), of which he is not a beneficiary, does not warrant CPLR 3211 dismissal (see CPLR 7703; Surrogate’s Court Procedure Act § 103[39]; Matter of Kosmo Family Trust, 72 Misc.3d 1214[A], 2021 N.Y. Slip Op. 50745[U], *3, 2021 WL 3409360 [Sur. Ct., Albany County 2021], affd 207 A.D.3d 934, 172 N.Y.S.3d 501 [3d Dept. 2022]; see also Matter of Morse, 177 Misc.2d 43, 46, 676 N.Y.S.2d 407 [Sur. Ct., N.Y. County 1998]). [2] The motion court providently exercised its discretion by granting petitioner leave to amend (see Verizon N.Y. Inc. v. Consolidated Edison, Inc., 38 A.D.3d 391, 830 N.Y.S.2d 902 [1st Dept. 2007]).
Initially, because the Agreement contains a choice of law provision, Pennsylvania substantive law governs. "However, as the forum hosting the litigation, the procedural rules of this state must apply, including those setting forth [the] burden on a motion for summary judgment" ( Matter of Kosmo Family Trust [Wieland–Savino], 207 A.D.3d 934, 936, 172 N.Y.S.3d 501 [3d Dept. 2022] [citations omitted]; seeDavis v. Scottish Re Group Ltd., 30 N.Y.3d 247, 252, 66 N.Y.S.3d 447, 88 N.E.3d 892 [2017] ). "When considering a motion for summary judgment, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" ( Carpenter v. Nigro Cos., Inc., 203 A.D.3d 1419, 1420–1421, 165 N.Y.S.3d 618 [3d Dept. 2022] [internal quotation marks and citations omitted]).
As the burden on a motion for summary judgment is considered procedural in New York State, our State's standard applies to this application (see Matter of. Kosmo Family Trust(Saving), 207 A.D.3d 934, 936 [3d Dept 2022], citing Davis, 30 N.Y.3d at 252; see also Nestor v Putney Twombly Hall & Hirson, LLP, 153 A.D.3d 840, 842 [2017], Iv denied 30 N.Y.3d 907 [2017]; Ground to Air Catering v Dobbs Inti. Servs., 285 A.D.2d 931, 932 [3d Dept 2001]). Summary Judgment Motion
Contrary to Respondents’ arguments, the Petitioners have the legal capacity to challenge the validity of the Purported Trust because the Petitioners are beneficiaries thereof. See SCPA § 103(8), (19), (39) ; Matter of Kosmo Fam. Tr., dated July 18, 1994 , 72 Misc. 3d 1214(A), 2021 WL 3409360 (Sur. Ct. 2021), aff'd sub nom.Matter of Kosmo Fam. Tr., 207 A.D.3d 934, 172 N.Y.S.3d 501 (3d Dept. 2022) ; Constantine v. Lutz , 204 A.D.3d 1328, 1329, 168 N.Y.S.3d 134 (3d Dept. 2022). Thus, regardless of standing, as discussed below, Petitioners’ petition would not be dismissed since their interest gives them capacity to challenge the instrument.