Legal Memorandum: Compulsory Accounting Proceedings in NY

Issue: Under the law of New York, when is a compulsory accounting proceeding available to a party?

Compulsory accounting proceedings are governed by N.Y. Surr. Ct. Proc. Act. § 2205.  A compulsory accounting proceeding may be brought on petition of one of the parties listed in the statute; alternately, the court may order an accounting on its own motion.  Id.  Subsection 1 of the statute grants the court the authority to make various orders relating to the administration of a trust, such as requiring an accounting, or suspending a fiduciary.  In addition to the specific orders set out, the statute also allows the court to make an order “granting such other and further relief as the court may direct.” 

According to the statute, the matters to be addressed in an accounting proceeding are limited.  Courts do, however, use accounting proceedings to resolve other matters, “even ones that should more properly have been raised in a different proceeding.”  Practice Commentary to N.Y. Surr. Ct. Proc. Act. § 2205 (McKinney 2014).  The Surrogate’s Court has jurisdiction to decide in any proceeding any issue over which it has subject matter jurisdiction.  N.Y. Surr. Ct. Proc. Act. § 202.  Thus, in the case of In re Accounting Carner, 25 Misc. 3d 1228(A), 906 N.Y.S.2d 771 (A) (Sur. Ct. 2009), the court, as a part of its order in an intermediate accounting proceeding, ordered a trustee to repay with interest excess commissions taken by the trustee.  In the case of Matter of Buxton, 2003 NY Slip Op 51492(U) (Sur. Ct. 2003), the Surrogate’s Court used an accounting proceeding to decide a request […]