

Matter of Duerr (2018 NY Slip Op 04676)





Matter of Duerr


2018 NY Slip Op 04676


Decided on June 26, 2018


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 26, 2018

Renwick, J.P., Gische, Kapnick, Gesmer, Kern, JJ.


6978 SCI 2385D/13

[*1]In re Gerald J. Duerr, etc.
	Sandra Branch Trust, et al., Petitioners,
vBonnie Diaz, Respondent-Appellant, New York State Attorney General, Respondent-Respondent.


Susan R. Nudelman, Dix Hills, for appellant.
Eric T. Schneiderman, Attorney General, New York (Mark H. Shawhan of counsel), for respondent.

Order, Surrogate's Court, New York County (Rita Mella, S.), entered on or about October 6, 2016, which granted the New York State Attorney General's motion for summary judgment to the extent of holding that a trust created by Sandra Branch on October 17, 2006 (the 2006 Trust) was neither amended nor revoked by a trust she created on November 6, 2012 (the 2012 Trust), unanimously affirmed, without costs.
Even though the order appealed from did not resolve all of the disputes among the parties, it was not an improper advisory opinion because it set parameters for the litigation (see Matter of New York City Asbestos Litig., 130 AD3d 489, 490 [1st Dept 2015]).
It is undisputed that the 2012 Trust was never funded. Thus, it never became operative (see e.g. Pinckney v City Bank Farmers Trust Co., 249 App Div 375, 377 [3d Dept 1937] [trust "becomes operative when adequately constructed"]; Hickok v Bunting, 67 App Div 560, 562 [1st Dept 1902] ["to constitute a trust there must be a res to which it can attach"]; Estates, Powers & Trusts Law § 7-1.18). Since the 2012 Trust never became operative, it could not have revoked the 2006 Trust.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 26, 2018
CLERK


