Preview
FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023
EXHIBIT A
FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023
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1 STATE OF NEW YORK COUNTY OF ERIE
2 SUPREME COURT
3 xxxxxx xxxxxx, as Trustee of
SEVEN SEAS TRUST,
4
PETITIONER, INDEX #804909/2023
5
-vs-
6 ORAL ARGUMENT
VIKTORIA BERESS,
7
RESPONDENT,
8
9
50 Delaware Avenue
10 Buffalo, New York 14202
December 6, 2023.
11
HELD BEFORE: HONORABLE MARIO A. GIACOBBE,
12 SUPREME COURT JUSTICE.
13 APPEARANCES: JUSTIN J. ANDREOZZI, ESQ.,
DAVID MARCUS, ESQ.,
14 Appearing for the Petitioner .
15 RICHARD A. GRIMM, III, ESQ.
Appearing for the Respondent .
16
17 LISA G. PAZDERSKI,
Supreme Court Reporter.
18
19
20
21
22
23
24
25
FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023
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1 THE CLERK: This is the matter of xxxxxx
2 versus Beress, Index Number 804909/20023.
3 Counselors, please state your appearance for the
4 record.
5 MR. ANDREOZZI: Good morning, Your Honor.
6 Justin Andreozzi and David Marcus on behalf of
7 petitioner, xxxxxx xxxxxx.
8 MR. GRIMM: Richard Grimm, McGavern, McGavern
9 & Grimm on behalf of the respondent, Viktoria
10 Beress.
11 THE COURT: Good morning, counselors. How
12 are you?
13 MR. GRIMM: Good, thanks.
14 MR. ANDREOZZI: Good .
15 THE COURT: Good to see you. This is
16 petitioner's petition. Who is going to be
17 speaking on behalf of petitioner? Mr. Andreozzi?
18 MR. ANDREOZZI: Yes.
19 THE COURT: Okay.
20 MR. ANDREOZZI: Would you like me to do it
21 from the podium?
22 THE COURT: Wherever you are comfortable,
23 sir.
24 MR. ANDREOZZI: This is fine. We are here
25 today on two main issues, both of which are - -
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1 deal with injunctive relief that was requested by
2 petitioner. The first is a request to continue to
3 enjoin respondent in her powers as Trust Protector
4 and Trust Counsel from removing or replacing
5 petitioner as trustee. And the second is to
6 compel respondent to provide financial information
7 that she has available to her to petitioner in his
8 capacity as trustee and a beneficiary -- one of
9 two beneficiaries of this trust.
10 The -- I'm going to start with just a quick
11 background and facts and circumstances, because it
12 is what is really what drives our case.
13 THE COURT: Sure.
14 MR. ANDREOZZI: The reality and facts here is
15 that our client, the petitioner, his mother, set
16 up a trust. And the clear intent of that trust
17 was to provide an inheritance for her two sons,
18 our client and his brother, Roman xxxxxx.
19 Our client's stepfather, who was married to
20 his mother at the time that she set up the trust
21 and at the time she passed away, he in his
22 affidavit, our client goes into detail of their
23 strange relationship throughout his life. They
24 never quite got along. After his mother passed
25 away , it got worse. Petitioner's father -- or
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1 stepfather has remarried, and, by respondent's own
2 words, is now trying to, behind the scenes, pull
3 the strings on this trust.
4 He is not a trustee. He is not a substantial
5 beneficiary. He has one right under this trust,
6 and that right is to live in one property of the
7 trust until he passes away, at which point, all of
8 the property in the trust is to be split equally
9 between the two sons of my -- of the petitioner's
10 mother, Yekaterina xxxxxx. The trust clearly
11 indicates that intent.
12 There's another two other provisions in
13 the trust that add a check-and-balance into her
14 intentions that come into play during the term of
15 the trust, which the trust term is the lifetime of
16 the -- of our client's mother, petitioner's mother
17 and Igor xxxxxx. During that time, either
18 trustee, petitioner or his brother, Roman, can
19 distribute, at their own discretion, as much of
20 the principal or income of the trust as they
21 desire, but there's two restrictions: First is
22 that they can not distribute it to themselves; and
23 the second is that they can only distribute it to
24 the other beneficiary under the trust or trustee.
25 So that check-and-balance ensures that the
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1 trustee, one son, will not get more than the other
2 unless the one who is not receiving it agrees.
3 Respondent's threats to remove petitioner as
4 trustee thwarts that check-and-balance and
5 undermines the final intention that the assets be
6 split equally.
7 This whole case started because respondent
8 told my client that he was to transfer a property,
9 a substantial property in the trust to his
10 brother, and that -- and my client agreed to do
11 it. He was fine with doing it, but all he asked
12 was that it be accounted for and accounted as part
13 of his half, of his brother's half.
14 The Trust Protector told him that it would
15 not be part of his brother's half, that our client
16 had no right to any assets in the trust. And that
17 if he didn't transfer this asset, he would be
18 removed. And that threat was reiterated several
19 times.
20 I then called respondent to find out why this
21 was the case , why she was making these threats.
22 She then, several times to me, made it very clear
23 that Igor xxxxxx, petitioner's stepfather, is
24 pulling the strings, is making the decisions.
25 Igor is paying respondent. He is her client, and
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1 she going to do exactly what he says. That is not
2 the intention of the trust.
3 Now, recently, they have tried to make the
4 argument that she is to listen to what Igor xxxxxx
5 says because he is constructively a grantor of the
6 trust, okay. He's not named as a grantor of the
7 trust. The trust document is clearly the
8 Yekaterina xxxxxx•s trust and passes -- the assets
9 passed through her intentions and the terms of the
10 trust. But they claim now that for privacy
11 reasons, they left his name out and that his
12 intentions should be adhered to and that she can
13 now direct the assets, not based on the terms of
14 the trust, but based on what he says .
15 There's no case law that would support that
16 at all. Privacy reasons, the trusts are private
17 documents, they are not filed anywhere. The only
18 person who would ever be aware of a trust document
19 is the trustees, and in most cases, the
20 beneficiaries . There's no legitimate reason to
21 keep somebody's name secretly out of a trust
22 unless they weren't intended to be there as a
23 grantor.
24 Likewise, trusts -- the only other place
25 where a trust would have -- the only other entity
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1 that would have any knowledge about a trust is the
2 Internal Revenue Service because the trust is
3 going to need an Employee Identification Number.
4 And if somebody contributes assets into it, an
5 irrevocable trust like this one is, Paragraph 8
6 explains the irrevocability of this trust. If
7 assets are transferred into it, you're making a
8 gift, which has to be reported to the Internal
9 Revenue Service.
10 Respondent claims that Igor xxxxxx made
11 substantial contributions to this , but does not
12 provide any evidence of any gifts that were made
13 to the trust at all .
14 I also -- let's see, I want to cover the
15 three elements of proof that we have today . The
16 first element is irreparable harm. And the
17 irreparable harm here is that if our client is
18 removed as trustee, he will lose his inheritance.
19 The way the trust is set up, if he is replaced,
20 whoever whatever that new trustee comes in and
21 does, they can approve a transfer of assets from
22 the trust to Roman xxxxxx, who is the biological
23 son of Igor xxxxxx, who has not communicated with
24 me or my client, and is requesting - - we know,
25 requesting assets from this trust.
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1 Without my client being there to balance
2 this, which is the intention of the grantor, of
3 the mother, whoever is appointed by respondent,
4 can dissipate the assets in the trust and my
5 client will be left with nothing. That harm is
6 not only imminent, it is irreparable. We still do
7 not know the extent of the assets in the trust.
8 We have found there are three properties worth
9 millions of dollars in the trust through searches
10 in the County Clerk's Office.
11 We know there has to be a bank account for
12 the trust because one of the properties is a
13 rental property that has income. We don't know
14 how much is in that account . We don't know if
15 there's other money in the account, in the trust.
16 We don't know if there's other properties in the
17 trust.
18 So, there's no way for us to know, because
19 the second request that we are making is that our
20 client is provided with financial information. If
21 he's removed and doesn't have that information and
22 those assets are dissipated, he faces irreparable
23 harm.
24 The other thing that is important to note
25 here is that we are not asking for money damages .
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1 All we are asking for is equitable injunctive
2 relief that petitioner -- that respondent be
3 enjoined from removing our client as trustee and
4 be estopped from dissipating any assets ,
5 transferring, encumbering, okay.
6 Second thing, a likelihood of success on the
7 merits. Given the fact and circumstances in this
8 case and the threats that are made, I think it is
9 clear that we are likely to prevail here on the
10 merits of this case . If Your Honor has any
11 questions regarding anything, I would be happy to
12 answer it, but I think the most important element
13 is the third one, which deals with balancing the
14 equities between petitioner and respondent.
15 When you look at the balancing here, if
16 respondent is allowed to remove petitioner as
17 trustee, he risks losing his inheritance, which we
18 know to be millions. It could be more. We know
19 it is at least more than what we are aware of at
20 this point because there's some undisclosed amount
21 that would be in a bank account for rental income;
22 could be even more . That is a substantial risk to
23 petitioner.
24 Respondent has no risk. Respondent claims
25 now, even after the statements made to me and my
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1 client, that she has no intention of removing
2 petitioner, and does not have any control over the
3 assets. If that is the case, then granting this
4 injunctive relief doesn't affect respondent at all
5 because not removing petitioner as trustee, if she
6 wasn't going to do that anyways, it doesn't
7 matter. If she has no control over the assets and
8 isn't going to do anything with the assets, then
9 instructing her -- preventing her from doing so
10 will also not change anything. There's nothing
11 that respondent stands to lose other than -- other
12 than money that she gets from Igor xxxxxx, my
13 client's stepfather, as his client -- as her
14 client, I'm sorry, who is paying her and she is
15 adhering to his wishes.
16 I would like to reserve time to respond .
17 THE COURT: Sure. Mr. Grimm?
18 MR. GRIMM: Thanks, Judge. If you don't
19 mind, I'm just more comfortable on my feet. I'm
20 going to come up.
21 THE COURT: No worries.
22 MR. GRIMM: Thanks. So Judge, wills -- like
23 trusts, wills and trusts are safe planning
24 devices. And the trust at the center of this
25 dispute, the center of this lawsuit, was part of
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1 an estate plan that was created by Igor and
2 Yekaterina xxxxxx. The Galpers contributed the
3 assets that form the corpus of the trust. The
4 fact that Mr. xxxxxx is not named as a granter in
5 the actual trust document is irrelevant. We have
6 cited the relevant section of the Internal Revenue
7 Code. We have also cited the treatise, the Heirs
8 on Estates and Trust Law Treatise that shows that
9 a grantor is identified or recognized as a person
10 who contributes assets to a trust.
11 So, the petitioner is asking for really an
12 extraordinary and an impermissible remedy. The
13 petitioner is asking this Court to viciate the
14 terms of a trust, asking the Court to enjoin the
15 Trust Protector appointed by or named by the
16 grantors from exercising the authority that was
17 granted to her in the trust. It is extraordinary.
18 If there's not a lot of case law on it, it
19 may be because it is so fundamentally the
20 concept is so fundamentally intuitive that a
21 trust -- that the grantors of a trust can name a
22 Trust Protector, can name trustees, can appoint or
23 name the powers of a Trust Protector or trustee,
24 that maybe there isn't a lot of case law on it .
25 Trust Protectors are a relatively new concept for
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1 sure, but fortunately, we have some guidance, we
2 have some Fourth Department guidance on what the
3 trust protector's role is, what the Trust
4 Protector's authority is.
s THE COURT: I don't mean to interrupt you,
6 but what about his argument that if you've
7 indicated on behalf of your client that
8 Ms. Beress, that her intention is not to remove
9 him from the trust, then what is the issue with
10 allowing them to have the injunctive relief that
11 they are asking? There's no -- like, you are both
12 on the same page then, right. Just looking at
13 this logically, what is the problem
14 MR. GRIMM: Right.
15 THE COURT: -- with just agreeing with what
16 they want to do.
17 MR. GRIMM: The problem is that Ms. Beress
18 has not made any determination whether she's going
19 to remove or not remove the trustee.
20 THE COURT: Okay.
21 MR. GRIMM: That is not a determination that
22 has been made. There's no commitment that she's
23 not going to remove him. She has the absolute
24 discretion to remove him if and when she
25 determines to exercise that discretion. But she
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1 certainly hasn't removed him in the nine months --
2 or didn't remove him in the nine months from the
3 point where this transaction first kind of went
4 off the rails.
5 THE COURT: I get it.
6 MR. GRIMM: She took no action to remove him.
7 THE COURT: I get it.
8 MR. GRIMM: So, what the -- what the -- or
9 what the petitioner is asking for is some sort of
10 a preemptive strike. You know, I'll get into that
11 in a minute. But the preemptive strike on the
12 Trust Protector is inappropriate for a number of
13 reasons.
14 So, this is really no different than asking
15 if a child came into the court, came into this
16 court or the Surrogate's Court and said I want an
17 injunction prohibiting or preventing my parents
18 from changing the terms of their will, it would be
19 thrown out in two seconds. We don't do that. It
20 is not the way these things operate. So, it is
21 really the fact that this is a different type
22 of estate planning device, it is a trust instead
23 of a will, it really makes no difference. It is
24 not consequential.
25 The fact that the Trust Protector's role is
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1 very narrow is relevant and significant. The
2 Trust Protector has no duties to the trustees.
3 The Trust Protector's role is limited to the
4 removal and/or replacement of a trustee at her
5 discretion. The Trust Protector doesn't have a
6 duty to file tax returns, doesn't have a duty to
7 marshal assets, doesn't have the duty to file
8 income tax returns here. Those are duties of the
9 trustees.
10 So, if Mr. xxxxxx, Petitioner xxxxxx has an
11 issue with respect to the accounting of the trust,
12 with respect to whether returns or gift tax -- he
13 should be talking to his father, just like
14 Ms. Beress said, or he should be talking to his
15 brother, his co-trustee on this account. Coming
16 back and trying to remove a Trust Protector who
17 has got such a very narrow limited role according
18 to the terms of the trust is not the right
19 vehicle. It is not where we need to be .
20 Procedurally -- so, I want to talk about,
21 quickly, procedurally. This is here on an
22 application for preliminary injunction. This
23 action was brought -- this proceeding, I should
24 say, was brought as part of a special proceeding
25 under Article 4. And typically, special
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1 proceedings are decided summarily. They are
2 decided on the papers. We may need an evidentiary
3 hearing on occasion. I don't think you need an
4 evidentiary hearing here because the facts are not
5 really in dispute. It is really a question of
6 law.
7 So the request for a preliminary injunction
8 should be denied for the following reasons, and we
9 are going to ask that the petition be dismissed
10 because, obviously, it has no merit.
11 Standard for PI, obviously, you know the
12 standard, Judge, it is three factors . You got to
13 prove all three by clear and convincing evidence.
14 If you go one-for-three or two-for-three, that's
15 not good enough. You have to have all three of
16 them .
17 There's not a likelihood of success on the
18 merits of this case . And we know that because the
19 preliminary injunction is anticipatory. There's
20 no justiciable claim here. You can't get relief
21 from something you are afraid might happen in the
22 future. If and when -- if petitioner were to act,
23 were to remove a trustee, now that claim is ripe.
24 Now you have a justiciable claim, and the
25 petitioner has a remedy .
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1 THE COURT: What is the remedy?
2 MR. GRIMM: The remedy is file an action to
3 viciate or to void the action of the Trust
4 Protector. We know from the Alan case, Judge
5 Walker's decision in Alan, upheld at the Fourth
6 Department, that the Trust Protector has the
7 authority to remove a trustee. And that authority
8 is reviewed -- the standard of review is whether
9 or not the Trust Protector acted in good faith in
10 removing the trustee.
11 Well, we don't have that. We can't make that
12 determination today. We don't have the facts.
13 The trustee has not been removed, so there's no
14 basis to review whether or not the Trust Protector
15 has acted in good faith. You have to make that
16 determination based on the facts at the time that
17 the trustee is removed, if, in fact, that
18 happened.
19 THE COURT: So hypothetically, you would
20 bring what, an order to show cause at that point?
21 Here? Surrogate's Court?
22 MR. GRIMM: Here. A hundred percent, Judge.
23 Here, Surrogate's Court has jurisdiction; either
24 place has jurisdiction to address that issue.
25 THE COURT: Okay.
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1 MR. GRIMM: But until it happens, like I
2 said, we have no justiciable claim.
3 So, no likelihood of success on the merits,
4 the threat of irreparable harm. Obviously, if you
5 have a remedy, you don't have irreparable harm.
6 Threat of immediate irreparable harm . Well, it's
7 not immediate. We talked about the nine-month
8 period.
9 Moving on to the balancing of the equities .
10 I understand that the trustee might not like the
11 estate plan that his parents put in place, but we
12 have to carry out the wishes of the grantors. The
13 Trust Protector -- if you want to balance the
14 equities, the equities balance in favor of
15 carrying out the wishes of the granters and
16 enjoining the Trust Protector from exercising the
17 authority specifically unequivocally granted to
18 her in that trust does not permit her to carry out
19 those duties, so the equities don't balance in her
20 favor.
21 There's no fiduciary duty to the trustees.
22 The Trust Protector has no fiduciary duty to the
23 trustees. In fact, the Trust Protector has no
24 duty whatsoever to the trustees. Her duty is
25 obviously to carry out the wishes of the trust.
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1 The application for preliminary injunction we
2 believe ought to be denied and petition dismissed.
3 With that, if you have any questions, I would be
4 happy to try and answer them, Judge.
5 THE COURT: Thank you, Mr. Grimm.
6 MR. GRIMM: Thank you.
7 THE COURT: Mr. Andreozzi?
8 MR. ANDREOZZI: Thank you, Your Honor. First
9 thing I want to address is respondent's --
10 THE COURT: Before you go any further, what
11 about his argument that should they take action
12 and remove your client, that you can just bring an
13 order to show cause then?
14 MR. ANDREOZZI: So , Your Honor, it is
15 important to recognize the fact that my client has
16 been kept in the dark with this trust . Igor
17 xxxxxx has cast a shadow over this trust and
18 precluded my client from being given any
19 information regarding the assets. He's entitled
20 to that information both as a trustee and a
21 beneficiary. We have no idea what is going on
22 behind t h e scenes r i ght n ow. We are trying one
23 request is to prevent my client from being removed
24 as trustee so that he still has standing to bring
25 this action while he is a trustee and beneficiary.
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1 But if he 1 s removed, one, they can argue down the
2 line that as a non-trustee, he has no standing and
3 there's no assets left, he 1 s not a beneficiary
4 there.
5 But the more relevant point is we won't know
6 the extent of the harm done because he can't
7 supervise what is going on in the trust if he's
8 removed as a trustee. I mean, the biggest thing
9 we are asking for is to prevent him from being
10 removed as a trustee without any cause. All he
11 wants to do is make sure he has control of what is
12 going on in this trust that he is entitled to
13 control and entitled to half the assets of.
14 But most importantly, he needs to know what
15 is there so that if things are getting dissipated,
16 he can, you know, seek that as a damage later on.
17 If he's -- if this injunction isn't granted, then
18 he will have no idea the extent of the damages.
19 That would be my response to that question.
20 I want to address a few of the points that
21 Mr. Grimm makes. One of them is a kin this to a
22 kid coming to court trying to seek -- prevention
23 of his parents from changing their will. Of
24 course that wouldn't happen. But this isn't a kid
25 stopping his parents from changing their will,
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1 this is a trustee and a beneficiary of an
2 irrevocable trust seeking a third party from
3 changing the terms and intent of that trust.
4 He also cites to the Internal Revenue Code
5 and to a tax treatise to say that the IRS will
6 come in and say that somebody is a constructive
7 grantor of a trust, right. We don't disagree with
8 that.
9 The way that this trust, and many irrevocable
10 trusts are set up, there's a grantor by name. In
11 this trust, it is Yekaterina xxxxxx and Yekaterina
12 xxxxxx only. However, the terms of this trust say
13 that anybody can contribute property, assets,
14 money to the trust.
15 Now, from the IRS perspective, if, for
16 example, Your Honor, if you have a trust that you
17 set up, you're the grantor, you picked the intent
18 of the trust, you picked who is getting the money,
19 who is going to be the beneficiary of that trust.
20 And let's say you put a hundred thousand dollars
21 in that trust for those specific beneficiaries. I
22 could come in and contribute assets to that trust.
23 And if I do that, if I contribute assets, the IRS
24 says I'm a grantor of that trust. And with an
25 irrevocable trust, I have to pay a gift tax on
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1 that if it is over the thresholds. So what the
2 IRS wants to avoid is your name on a trust that I
3 contribute assets to and avoid the gift tax.
4 They are saying constructively,
5 Mr. Andreozzi, you would be a grantor
6 constructively for tax purposes, not for the
7 intent of the trust.
8 Under their example, they are saying that
9 Yekaterina xxxxxx can set up a trust, clearly
10 demonstrate within the express terms of the trust
11 that her intention is that her two sons split the
12 assets. And Igor xxxxxx -- mind you, they have
13 not submitted any evidence that he has contributed
14 his own assets to this trust. Even if he did,
15 that he could somehow contribute assets and
16 because the IRS treats him as a grantor, he can
17 usurp control of the trust corpus and direct --
18 pull strings behind the scenes and now direct
19 where the money goes? That is not how trusts work
20 at all. They cite nothing in the law other than,
21 again, the Internal Revenue Code saying: You
22 can't cheat us. You know, so that is an important
23 point to understand.
24 The other reference to the Alan case, in the
25 Alan case, you had a trustee who was removed for
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1 cause. You had a Trust Protector who removed them
2 not in bad faith, but because the person was not
3 doing their job. Here, my client wants to do his
4 job, and is being actively prevented from doing so
5 by Igor xxxxxx and by respondent, Igor's attorney
6 and the Trust Protector in the case. So, those
7 cases have no relevance to the situation here.
8 There is bad faith here. There are threats, and
9 my client faces irreparable harm. Thank you.
10 THE COURT: Mr. Grimm, anything further?
11 MR. GRIMM: Just quickly. You can't make a
12 determination of bad faith until something has
13 happened. That's my point.
14 The point with the grantor is, I mean, I'm
15 comfortable with the fact that Igor xxxxxx is a
16 granter, but it is a bit of a red herring. Look
17 at the language in the trust. Look at the express
18 language in the trust with respect to the Trust
19 Protector and her role. Regardless of who the
20 grantor is, the express language ought to be
21 enforced.
22 THE COURT: Okay. The Court will take a
23 ten-minute recess.
24 (A brief recess was then taken . )
25 THE COURT: You may be seated. So,
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1 Mr. Andreozzi, I'm going to ask you a couple of
2 more questions because I'm struggling with this a
3 little bit, okay. Just like Roman is a trustee,
4 your client is a trustee in this matter, okay.
5 So, how does he, as you claim, not have access to
6 the information as to what is in the trust if he
7 is, in fact, a trustee?
8 MR. ANDREOZZI: So, Your Honor, there's no
9 question but that he is a trustee. It is right in
10 the terms of the trust.
11 THE COURT: Right.
12 MR. ANDREOZZI: The issue is that after the
13 trust was created -- and this is speculation.
14 This is speculation.
15 THE COURT: Okay.
16 MR. ANDREOZZI: roman, Viktoria,
17 respondent and Igor xxxxxx have had -- run the
18 trust. Roman is an attorney, so he probably has
19 some experience here, but they had actively kept
20 the information of what was in the trust from him.
21 He has made repeated requests to be kept in the
22 loop and advised of what is in the trust and what
23 his duties are. And he's repeatedly told he
24 couldn't have anything. He has no right to do
25 anything, which is incorrect. He can't -- he only
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1 knows what he's told.
2 THE COURT: Right. What I'm saying is it is
3 clear that he's a trustee and he would be entitled
4 to that information, but if you look at the
5 language of trust, your relief here is that
6 you are asking this Court to order the Trust
7 Protector in this case, Victoria Beress, to turn
8 that information over, and it is clear in the
9 language of the trust that she doesn't she's
10 not a fiduciary. She doesn't have the ability to
11 do that. So you are asking this Court to force
12 her to give that information, when really, your
13 recourse might be that there's another party to
14 this action that maybe you should be considering,
15 and that's Roman.
16 MR. ANDREOZZI: Right.
17 THE COURT: In other words, he's the party
18 that you should potentially be going to court for
19 if you are not getting the information that you
20 want, and getting it directly from him. He's
21 not -- he's not a party to this action.
22 MR. ANDREOZZI: So, we don't know for sure if
23 Roman has the information, either. Roman also is
24 not the one who made threats against my client.
25 Roman did ask for one of the properties and abided
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25
1 by the protocols of the trust in asking my client
2 for permission to transfer that. That's fine.
3 Other than ignore us and not provide us with, you
4 know, information that we requested, he hasn't
5 actively done anything to threaten my client.
6 Respondent has.
7 Now, the trust terms do say -- and the trust
8 was drafted by respondent. She wrote in there
9 that she's not a fiduciary, okay. That's fine .
10 But that doesn't mean she's not a fiduciary. That
11 doesn't mean she's not acting as a fiduciary. She
12 has several times made statements about the assets
13 in the trust. She -- when she made her venue
14 motion, she argued that the assets in the trust
15 are predominantly in Kings County. How could you
16 know that if you don't have information about the
17 assets of the trust? When we asked her for
18 information on the assets of the trust, she said
19 she will only give it to us if her client, Igor
20 xxxxxx, permits it. And that information is
21 protected by attorney-client privilege between her
22 and her client. That's a ridiculous response.
23 But she has to have it if it is covered by
24 attorney-client privilege. You know, it is not
25 that she doesn't have this information . She
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26
1 shouldn't have it because she's not a fiduciary
2 and her role has nothing to do with the assets in
3 this case, but she's acting outside of her role.
4 She's making threats that are in bad faith, and
5 she is doing things that are substantially outside
6 of the limited role that she is supposed to have .
7 That's why we need that information. She's the
8 only one we know for sure has it other than Igor
9 xxxxxx. But, Igor isn't a party to this trust.
10 He should have no authority. We don't have -- we
11 can't force him to do anything because he has, you
12 know
13 THE COURT: But you could force Roman.
14 MR. ANDR
Preview
FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 EXHIBIT A FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 1 1 STATE OF NEW YORK COUNTY OF ERIE 2 SUPREME COURT 3 xxxxxx xxxxxx, as Trustee of SEVEN SEAS TRUST, 4 PETITIONER, INDEX #804909/2023 5 -vs- 6 ORAL ARGUMENT VIKTORIA BERESS, 7 RESPONDENT, 8 9 50 Delaware Avenue 10 Buffalo, New York 14202 December 6, 2023. 11 HELD BEFORE: HONORABLE MARIO A. GIACOBBE, 12 SUPREME COURT JUSTICE. 13 APPEARANCES: JUSTIN J. ANDREOZZI, ESQ., DAVID MARCUS, ESQ., 14 Appearing for the Petitioner . 15 RICHARD A. GRIMM, III, ESQ. Appearing for the Respondent . 16 17 LISA G. PAZDERSKI, Supreme Court Reporter. 18 19 20 21 22 23 24 25 FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 2 1 THE CLERK: This is the matter of xxxxxx 2 versus Beress, Index Number 804909/20023. 3 Counselors, please state your appearance for the 4 record. 5 MR. ANDREOZZI: Good morning, Your Honor. 6 Justin Andreozzi and David Marcus on behalf of 7 petitioner, xxxxxx xxxxxx. 8 MR. GRIMM: Richard Grimm, McGavern, McGavern 9 & Grimm on behalf of the respondent, Viktoria 10 Beress. 11 THE COURT: Good morning, counselors. How 12 are you? 13 MR. GRIMM: Good, thanks. 14 MR. ANDREOZZI: Good . 15 THE COURT: Good to see you. This is 16 petitioner's petition. Who is going to be 17 speaking on behalf of petitioner? Mr. Andreozzi? 18 MR. ANDREOZZI: Yes. 19 THE COURT: Okay. 20 MR. ANDREOZZI: Would you like me to do it 21 from the podium? 22 THE COURT: Wherever you are comfortable, 23 sir. 24 MR. ANDREOZZI: This is fine. We are here 25 today on two main issues, both of which are - - FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 3 1 deal with injunctive relief that was requested by 2 petitioner. The first is a request to continue to 3 enjoin respondent in her powers as Trust Protector 4 and Trust Counsel from removing or replacing 5 petitioner as trustee. And the second is to 6 compel respondent to provide financial information 7 that she has available to her to petitioner in his 8 capacity as trustee and a beneficiary -- one of 9 two beneficiaries of this trust. 10 The -- I'm going to start with just a quick 11 background and facts and circumstances, because it 12 is what is really what drives our case. 13 THE COURT: Sure. 14 MR. ANDREOZZI: The reality and facts here is 15 that our client, the petitioner, his mother, set 16 up a trust. And the clear intent of that trust 17 was to provide an inheritance for her two sons, 18 our client and his brother, Roman xxxxxx. 19 Our client's stepfather, who was married to 20 his mother at the time that she set up the trust 21 and at the time she passed away, he in his 22 affidavit, our client goes into detail of their 23 strange relationship throughout his life. They 24 never quite got along. After his mother passed 25 away , it got worse. Petitioner's father -- or FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 4 1 stepfather has remarried, and, by respondent's own 2 words, is now trying to, behind the scenes, pull 3 the strings on this trust. 4 He is not a trustee. He is not a substantial 5 beneficiary. He has one right under this trust, 6 and that right is to live in one property of the 7 trust until he passes away, at which point, all of 8 the property in the trust is to be split equally 9 between the two sons of my -- of the petitioner's 10 mother, Yekaterina xxxxxx. The trust clearly 11 indicates that intent. 12 There's another two other provisions in 13 the trust that add a check-and-balance into her 14 intentions that come into play during the term of 15 the trust, which the trust term is the lifetime of 16 the -- of our client's mother, petitioner's mother 17 and Igor xxxxxx. During that time, either 18 trustee, petitioner or his brother, Roman, can 19 distribute, at their own discretion, as much of 20 the principal or income of the trust as they 21 desire, but there's two restrictions: First is 22 that they can not distribute it to themselves; and 23 the second is that they can only distribute it to 24 the other beneficiary under the trust or trustee. 25 So that check-and-balance ensures that the FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 5 1 trustee, one son, will not get more than the other 2 unless the one who is not receiving it agrees. 3 Respondent's threats to remove petitioner as 4 trustee thwarts that check-and-balance and 5 undermines the final intention that the assets be 6 split equally. 7 This whole case started because respondent 8 told my client that he was to transfer a property, 9 a substantial property in the trust to his 10 brother, and that -- and my client agreed to do 11 it. He was fine with doing it, but all he asked 12 was that it be accounted for and accounted as part 13 of his half, of his brother's half. 14 The Trust Protector told him that it would 15 not be part of his brother's half, that our client 16 had no right to any assets in the trust. And that 17 if he didn't transfer this asset, he would be 18 removed. And that threat was reiterated several 19 times. 20 I then called respondent to find out why this 21 was the case , why she was making these threats. 22 She then, several times to me, made it very clear 23 that Igor xxxxxx, petitioner's stepfather, is 24 pulling the strings, is making the decisions. 25 Igor is paying respondent. He is her client, and FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 6 1 she going to do exactly what he says. That is not 2 the intention of the trust. 3 Now, recently, they have tried to make the 4 argument that she is to listen to what Igor xxxxxx 5 says because he is constructively a grantor of the 6 trust, okay. He's not named as a grantor of the 7 trust. The trust document is clearly the 8 Yekaterina xxxxxx•s trust and passes -- the assets 9 passed through her intentions and the terms of the 10 trust. But they claim now that for privacy 11 reasons, they left his name out and that his 12 intentions should be adhered to and that she can 13 now direct the assets, not based on the terms of 14 the trust, but based on what he says . 15 There's no case law that would support that 16 at all. Privacy reasons, the trusts are private 17 documents, they are not filed anywhere. The only 18 person who would ever be aware of a trust document 19 is the trustees, and in most cases, the 20 beneficiaries . There's no legitimate reason to 21 keep somebody's name secretly out of a trust 22 unless they weren't intended to be there as a 23 grantor. 24 Likewise, trusts -- the only other place 25 where a trust would have -- the only other entity FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 7 1 that would have any knowledge about a trust is the 2 Internal Revenue Service because the trust is 3 going to need an Employee Identification Number. 4 And if somebody contributes assets into it, an 5 irrevocable trust like this one is, Paragraph 8 6 explains the irrevocability of this trust. If 7 assets are transferred into it, you're making a 8 gift, which has to be reported to the Internal 9 Revenue Service. 10 Respondent claims that Igor xxxxxx made 11 substantial contributions to this , but does not 12 provide any evidence of any gifts that were made 13 to the trust at all . 14 I also -- let's see, I want to cover the 15 three elements of proof that we have today . The 16 first element is irreparable harm. And the 17 irreparable harm here is that if our client is 18 removed as trustee, he will lose his inheritance. 19 The way the trust is set up, if he is replaced, 20 whoever whatever that new trustee comes in and 21 does, they can approve a transfer of assets from 22 the trust to Roman xxxxxx, who is the biological 23 son of Igor xxxxxx, who has not communicated with 24 me or my client, and is requesting - - we know, 25 requesting assets from this trust. FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 8 1 Without my client being there to balance 2 this, which is the intention of the grantor, of 3 the mother, whoever is appointed by respondent, 4 can dissipate the assets in the trust and my 5 client will be left with nothing. That harm is 6 not only imminent, it is irreparable. We still do 7 not know the extent of the assets in the trust. 8 We have found there are three properties worth 9 millions of dollars in the trust through searches 10 in the County Clerk's Office. 11 We know there has to be a bank account for 12 the trust because one of the properties is a 13 rental property that has income. We don't know 14 how much is in that account . We don't know if 15 there's other money in the account, in the trust. 16 We don't know if there's other properties in the 17 trust. 18 So, there's no way for us to know, because 19 the second request that we are making is that our 20 client is provided with financial information. If 21 he's removed and doesn't have that information and 22 those assets are dissipated, he faces irreparable 23 harm. 24 The other thing that is important to note 25 here is that we are not asking for money damages . FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 9 1 All we are asking for is equitable injunctive 2 relief that petitioner -- that respondent be 3 enjoined from removing our client as trustee and 4 be estopped from dissipating any assets , 5 transferring, encumbering, okay. 6 Second thing, a likelihood of success on the 7 merits. Given the fact and circumstances in this 8 case and the threats that are made, I think it is 9 clear that we are likely to prevail here on the 10 merits of this case . If Your Honor has any 11 questions regarding anything, I would be happy to 12 answer it, but I think the most important element 13 is the third one, which deals with balancing the 14 equities between petitioner and respondent. 15 When you look at the balancing here, if 16 respondent is allowed to remove petitioner as 17 trustee, he risks losing his inheritance, which we 18 know to be millions. It could be more. We know 19 it is at least more than what we are aware of at 20 this point because there's some undisclosed amount 21 that would be in a bank account for rental income; 22 could be even more . That is a substantial risk to 23 petitioner. 24 Respondent has no risk. Respondent claims 25 now, even after the statements made to me and my FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 10 1 client, that she has no intention of removing 2 petitioner, and does not have any control over the 3 assets. If that is the case, then granting this 4 injunctive relief doesn't affect respondent at all 5 because not removing petitioner as trustee, if she 6 wasn't going to do that anyways, it doesn't 7 matter. If she has no control over the assets and 8 isn't going to do anything with the assets, then 9 instructing her -- preventing her from doing so 10 will also not change anything. There's nothing 11 that respondent stands to lose other than -- other 12 than money that she gets from Igor xxxxxx, my 13 client's stepfather, as his client -- as her 14 client, I'm sorry, who is paying her and she is 15 adhering to his wishes. 16 I would like to reserve time to respond . 17 THE COURT: Sure. Mr. Grimm? 18 MR. GRIMM: Thanks, Judge. If you don't 19 mind, I'm just more comfortable on my feet. I'm 20 going to come up. 21 THE COURT: No worries. 22 MR. GRIMM: Thanks. So Judge, wills -- like 23 trusts, wills and trusts are safe planning 24 devices. And the trust at the center of this 25 dispute, the center of this lawsuit, was part of FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 11 1 an estate plan that was created by Igor and 2 Yekaterina xxxxxx. The Galpers contributed the 3 assets that form the corpus of the trust. The 4 fact that Mr. xxxxxx is not named as a granter in 5 the actual trust document is irrelevant. We have 6 cited the relevant section of the Internal Revenue 7 Code. We have also cited the treatise, the Heirs 8 on Estates and Trust Law Treatise that shows that 9 a grantor is identified or recognized as a person 10 who contributes assets to a trust. 11 So, the petitioner is asking for really an 12 extraordinary and an impermissible remedy. The 13 petitioner is asking this Court to viciate the 14 terms of a trust, asking the Court to enjoin the 15 Trust Protector appointed by or named by the 16 grantors from exercising the authority that was 17 granted to her in the trust. It is extraordinary. 18 If there's not a lot of case law on it, it 19 may be because it is so fundamentally the 20 concept is so fundamentally intuitive that a 21 trust -- that the grantors of a trust can name a 22 Trust Protector, can name trustees, can appoint or 23 name the powers of a Trust Protector or trustee, 24 that maybe there isn't a lot of case law on it . 25 Trust Protectors are a relatively new concept for FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 12 1 sure, but fortunately, we have some guidance, we 2 have some Fourth Department guidance on what the 3 trust protector's role is, what the Trust 4 Protector's authority is. s THE COURT: I don't mean to interrupt you, 6 but what about his argument that if you've 7 indicated on behalf of your client that 8 Ms. Beress, that her intention is not to remove 9 him from the trust, then what is the issue with 10 allowing them to have the injunctive relief that 11 they are asking? There's no -- like, you are both 12 on the same page then, right. Just looking at 13 this logically, what is the problem 14 MR. GRIMM: Right. 15 THE COURT: -- with just agreeing with what 16 they want to do. 17 MR. GRIMM: The problem is that Ms. Beress 18 has not made any determination whether she's going 19 to remove or not remove the trustee. 20 THE COURT: Okay. 21 MR. GRIMM: That is not a determination that 22 has been made. There's no commitment that she's 23 not going to remove him. She has the absolute 24 discretion to remove him if and when she 25 determines to exercise that discretion. But she FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 13 1 certainly hasn't removed him in the nine months -- 2 or didn't remove him in the nine months from the 3 point where this transaction first kind of went 4 off the rails. 5 THE COURT: I get it. 6 MR. GRIMM: She took no action to remove him. 7 THE COURT: I get it. 8 MR. GRIMM: So, what the -- what the -- or 9 what the petitioner is asking for is some sort of 10 a preemptive strike. You know, I'll get into that 11 in a minute. But the preemptive strike on the 12 Trust Protector is inappropriate for a number of 13 reasons. 14 So, this is really no different than asking 15 if a child came into the court, came into this 16 court or the Surrogate's Court and said I want an 17 injunction prohibiting or preventing my parents 18 from changing the terms of their will, it would be 19 thrown out in two seconds. We don't do that. It 20 is not the way these things operate. So, it is 21 really the fact that this is a different type 22 of estate planning device, it is a trust instead 23 of a will, it really makes no difference. It is 24 not consequential. 25 The fact that the Trust Protector's role is FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 14 1 very narrow is relevant and significant. The 2 Trust Protector has no duties to the trustees. 3 The Trust Protector's role is limited to the 4 removal and/or replacement of a trustee at her 5 discretion. The Trust Protector doesn't have a 6 duty to file tax returns, doesn't have a duty to 7 marshal assets, doesn't have the duty to file 8 income tax returns here. Those are duties of the 9 trustees. 10 So, if Mr. xxxxxx, Petitioner xxxxxx has an 11 issue with respect to the accounting of the trust, 12 with respect to whether returns or gift tax -- he 13 should be talking to his father, just like 14 Ms. Beress said, or he should be talking to his 15 brother, his co-trustee on this account. Coming 16 back and trying to remove a Trust Protector who 17 has got such a very narrow limited role according 18 to the terms of the trust is not the right 19 vehicle. It is not where we need to be . 20 Procedurally -- so, I want to talk about, 21 quickly, procedurally. This is here on an 22 application for preliminary injunction. This 23 action was brought -- this proceeding, I should 24 say, was brought as part of a special proceeding 25 under Article 4. And typically, special FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 15 1 proceedings are decided summarily. They are 2 decided on the papers. We may need an evidentiary 3 hearing on occasion. I don't think you need an 4 evidentiary hearing here because the facts are not 5 really in dispute. It is really a question of 6 law. 7 So the request for a preliminary injunction 8 should be denied for the following reasons, and we 9 are going to ask that the petition be dismissed 10 because, obviously, it has no merit. 11 Standard for PI, obviously, you know the 12 standard, Judge, it is three factors . You got to 13 prove all three by clear and convincing evidence. 14 If you go one-for-three or two-for-three, that's 15 not good enough. You have to have all three of 16 them . 17 There's not a likelihood of success on the 18 merits of this case . And we know that because the 19 preliminary injunction is anticipatory. There's 20 no justiciable claim here. You can't get relief 21 from something you are afraid might happen in the 22 future. If and when -- if petitioner were to act, 23 were to remove a trustee, now that claim is ripe. 24 Now you have a justiciable claim, and the 25 petitioner has a remedy . FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 16 1 THE COURT: What is the remedy? 2 MR. GRIMM: The remedy is file an action to 3 viciate or to void the action of the Trust 4 Protector. We know from the Alan case, Judge 5 Walker's decision in Alan, upheld at the Fourth 6 Department, that the Trust Protector has the 7 authority to remove a trustee. And that authority 8 is reviewed -- the standard of review is whether 9 or not the Trust Protector acted in good faith in 10 removing the trustee. 11 Well, we don't have that. We can't make that 12 determination today. We don't have the facts. 13 The trustee has not been removed, so there's no 14 basis to review whether or not the Trust Protector 15 has acted in good faith. You have to make that 16 determination based on the facts at the time that 17 the trustee is removed, if, in fact, that 18 happened. 19 THE COURT: So hypothetically, you would 20 bring what, an order to show cause at that point? 21 Here? Surrogate's Court? 22 MR. GRIMM: Here. A hundred percent, Judge. 23 Here, Surrogate's Court has jurisdiction; either 24 place has jurisdiction to address that issue. 25 THE COURT: Okay. FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 17 1 MR. GRIMM: But until it happens, like I 2 said, we have no justiciable claim. 3 So, no likelihood of success on the merits, 4 the threat of irreparable harm. Obviously, if you 5 have a remedy, you don't have irreparable harm. 6 Threat of immediate irreparable harm . Well, it's 7 not immediate. We talked about the nine-month 8 period. 9 Moving on to the balancing of the equities . 10 I understand that the trustee might not like the 11 estate plan that his parents put in place, but we 12 have to carry out the wishes of the grantors. The 13 Trust Protector -- if you want to balance the 14 equities, the equities balance in favor of 15 carrying out the wishes of the granters and 16 enjoining the Trust Protector from exercising the 17 authority specifically unequivocally granted to 18 her in that trust does not permit her to carry out 19 those duties, so the equities don't balance in her 20 favor. 21 There's no fiduciary duty to the trustees. 22 The Trust Protector has no fiduciary duty to the 23 trustees. In fact, the Trust Protector has no 24 duty whatsoever to the trustees. Her duty is 25 obviously to carry out the wishes of the trust. FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 18 1 The application for preliminary injunction we 2 believe ought to be denied and petition dismissed. 3 With that, if you have any questions, I would be 4 happy to try and answer them, Judge. 5 THE COURT: Thank you, Mr. Grimm. 6 MR. GRIMM: Thank you. 7 THE COURT: Mr. Andreozzi? 8 MR. ANDREOZZI: Thank you, Your Honor. First 9 thing I want to address is respondent's -- 10 THE COURT: Before you go any further, what 11 about his argument that should they take action 12 and remove your client, that you can just bring an 13 order to show cause then? 14 MR. ANDREOZZI: So , Your Honor, it is 15 important to recognize the fact that my client has 16 been kept in the dark with this trust . Igor 17 xxxxxx has cast a shadow over this trust and 18 precluded my client from being given any 19 information regarding the assets. He's entitled 20 to that information both as a trustee and a 21 beneficiary. We have no idea what is going on 22 behind t h e scenes r i ght n ow. We are trying one 23 request is to prevent my client from being removed 24 as trustee so that he still has standing to bring 25 this action while he is a trustee and beneficiary. FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 19 1 But if he 1 s removed, one, they can argue down the 2 line that as a non-trustee, he has no standing and 3 there's no assets left, he 1 s not a beneficiary 4 there. 5 But the more relevant point is we won't know 6 the extent of the harm done because he can't 7 supervise what is going on in the trust if he's 8 removed as a trustee. I mean, the biggest thing 9 we are asking for is to prevent him from being 10 removed as a trustee without any cause. All he 11 wants to do is make sure he has control of what is 12 going on in this trust that he is entitled to 13 control and entitled to half the assets of. 14 But most importantly, he needs to know what 15 is there so that if things are getting dissipated, 16 he can, you know, seek that as a damage later on. 17 If he's -- if this injunction isn't granted, then 18 he will have no idea the extent of the damages. 19 That would be my response to that question. 20 I want to address a few of the points that 21 Mr. Grimm makes. One of them is a kin this to a 22 kid coming to court trying to seek -- prevention 23 of his parents from changing their will. Of 24 course that wouldn't happen. But this isn't a kid 25 stopping his parents from changing their will, FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 20 1 this is a trustee and a beneficiary of an 2 irrevocable trust seeking a third party from 3 changing the terms and intent of that trust. 4 He also cites to the Internal Revenue Code 5 and to a tax treatise to say that the IRS will 6 come in and say that somebody is a constructive 7 grantor of a trust, right. We don't disagree with 8 that. 9 The way that this trust, and many irrevocable 10 trusts are set up, there's a grantor by name. In 11 this trust, it is Yekaterina xxxxxx and Yekaterina 12 xxxxxx only. However, the terms of this trust say 13 that anybody can contribute property, assets, 14 money to the trust. 15 Now, from the IRS perspective, if, for 16 example, Your Honor, if you have a trust that you 17 set up, you're the grantor, you picked the intent 18 of the trust, you picked who is getting the money, 19 who is going to be the beneficiary of that trust. 20 And let's say you put a hundred thousand dollars 21 in that trust for those specific beneficiaries. I 22 could come in and contribute assets to that trust. 23 And if I do that, if I contribute assets, the IRS 24 says I'm a grantor of that trust. And with an 25 irrevocable trust, I have to pay a gift tax on FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 21 1 that if it is over the thresholds. So what the 2 IRS wants to avoid is your name on a trust that I 3 contribute assets to and avoid the gift tax. 4 They are saying constructively, 5 Mr. Andreozzi, you would be a grantor 6 constructively for tax purposes, not for the 7 intent of the trust. 8 Under their example, they are saying that 9 Yekaterina xxxxxx can set up a trust, clearly 10 demonstrate within the express terms of the trust 11 that her intention is that her two sons split the 12 assets. And Igor xxxxxx -- mind you, they have 13 not submitted any evidence that he has contributed 14 his own assets to this trust. Even if he did, 15 that he could somehow contribute assets and 16 because the IRS treats him as a grantor, he can 17 usurp control of the trust corpus and direct -- 18 pull strings behind the scenes and now direct 19 where the money goes? That is not how trusts work 20 at all. They cite nothing in the law other than, 21 again, the Internal Revenue Code saying: You 22 can't cheat us. You know, so that is an important 23 point to understand. 24 The other reference to the Alan case, in the 25 Alan case, you had a trustee who was removed for FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 22 1 cause. You had a Trust Protector who removed them 2 not in bad faith, but because the person was not 3 doing their job. Here, my client wants to do his 4 job, and is being actively prevented from doing so 5 by Igor xxxxxx and by respondent, Igor's attorney 6 and the Trust Protector in the case. So, those 7 cases have no relevance to the situation here. 8 There is bad faith here. There are threats, and 9 my client faces irreparable harm. Thank you. 10 THE COURT: Mr. Grimm, anything further? 11 MR. GRIMM: Just quickly. You can't make a 12 determination of bad faith until something has 13 happened. That's my point. 14 The point with the grantor is, I mean, I'm 15 comfortable with the fact that Igor xxxxxx is a 16 granter, but it is a bit of a red herring. Look 17 at the language in the trust. Look at the express 18 language in the trust with respect to the Trust 19 Protector and her role. Regardless of who the 20 grantor is, the express language ought to be 21 enforced. 22 THE COURT: Okay. The Court will take a 23 ten-minute recess. 24 (A brief recess was then taken . ) 25 THE COURT: You may be seated. So, FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 23 1 Mr. Andreozzi, I'm going to ask you a couple of 2 more questions because I'm struggling with this a 3 little bit, okay. Just like Roman is a trustee, 4 your client is a trustee in this matter, okay. 5 So, how does he, as you claim, not have access to 6 the information as to what is in the trust if he 7 is, in fact, a trustee? 8 MR. ANDREOZZI: So, Your Honor, there's no 9 question but that he is a trustee. It is right in 10 the terms of the trust. 11 THE COURT: Right. 12 MR. ANDREOZZI: The issue is that after the 13 trust was created -- and this is speculation. 14 This is speculation. 15 THE COURT: Okay. 16 MR. ANDREOZZI: roman, Viktoria, 17 respondent and Igor xxxxxx have had -- run the 18 trust. Roman is an attorney, so he probably has 19 some experience here, but they had actively kept 20 the information of what was in the trust from him. 21 He has made repeated requests to be kept in the 22 loop and advised of what is in the trust and what 23 his duties are. And he's repeatedly told he 24 couldn't have anything. He has no right to do 25 anything, which is incorrect. He can't -- he only FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 24 1 knows what he's told. 2 THE COURT: Right. What I'm saying is it is 3 clear that he's a trustee and he would be entitled 4 to that information, but if you look at the 5 language of trust, your relief here is that 6 you are asking this Court to order the Trust 7 Protector in this case, Victoria Beress, to turn 8 that information over, and it is clear in the 9 language of the trust that she doesn't she's 10 not a fiduciary. She doesn't have the ability to 11 do that. So you are asking this Court to force 12 her to give that information, when really, your 13 recourse might be that there's another party to 14 this action that maybe you should be considering, 15 and that's Roman. 16 MR. ANDREOZZI: Right. 17 THE COURT: In other words, he's the party 18 that you should potentially be going to court for 19 if you are not getting the information that you 20 want, and getting it directly from him. He's 21 not -- he's not a party to this action. 22 MR. ANDREOZZI: So, we don't know for sure if 23 Roman has the information, either. Roman also is 24 not the one who made threats against my client. 25 Roman did ask for one of the properties and abided FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 25 1 by the protocols of the trust in asking my client 2 for permission to transfer that. That's fine. 3 Other than ignore us and not provide us with, you 4 know, information that we requested, he hasn't 5 actively done anything to threaten my client. 6 Respondent has. 7 Now, the trust terms do say -- and the trust 8 was drafted by respondent. She wrote in there 9 that she's not a fiduciary, okay. That's fine . 10 But that doesn't mean she's not a fiduciary. That 11 doesn't mean she's not acting as a fiduciary. She 12 has several times made statements about the assets 13 in the trust. She -- when she made her venue 14 motion, she argued that the assets in the trust 15 are predominantly in Kings County. How could you 16 know that if you don't have information about the 17 assets of the trust? When we asked her for 18 information on the assets of the trust, she said 19 she will only give it to us if her client, Igor 20 xxxxxx, permits it. And that information is 21 protected by attorney-client privilege between her 22 and her client. That's a ridiculous response. 23 But she has to have it if it is covered by 24 attorney-client privilege. You know, it is not 25 that she doesn't have this information . She FILED: ERIE COUNTY CLERK 12/29/2023 01:59 PM INDEX NO. 804909/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/29/2023 26 1 shouldn't have it because she's not a fiduciary 2 and her role has nothing to do with the assets in 3 this case, but she's acting outside of her role. 4 She's making threats that are in bad faith, and 5 she is doing things that are substantially outside 6 of the limited role that she is supposed to have . 7 That's why we need that information. She's the 8 only one we know for sure has it other than Igor 9 xxxxxx. But, Igor isn't a party to this trust. 10 He should have no authority. We don't have -- we 11 can't force him to do anything because he has, you 12 know 13 THE COURT: But you could force Roman. 14 MR. ANDR