New York Consolidated Laws, Lien Law - LIE § 77. Action to enforce trust

1. A trust arising under this article may be enforced by the holder of any trust claim, including any person subrogated to the right of a beneficiary of the trust holding a trust claim, in a representative action brought for the benefit of all beneficiaries of the trust.  An action to enforce the trust may also be maintained by the trustee. In any such action, except as otherwise provided in this article, the practice, pleadings, forms and procedure shall conform as nearly as may be to the practice, pleadings, forms and procedure in a class action as provided in article nine of the civil practice law and rules;  provided, however, that in determining whether the prerequisites of a class action have been satisfied, the provisions of paragraph one of subdivision (a) of section nine hundred one of such law and rules may be waived at the discretion of the court.

2. Such action may be maintained at any time during the improvement of real property, or home improvement, or public improvement and successive actions may be maintained from time to time during the improvement provided no other such action is pending at the time of the commencement thereof.  No such action shall be maintainable if commenced more than one year after the completion of such improvement or, in the case of subcontractors or materialmen, after the expiration of one year from the date on which final payment under the claimant's contract became due, whichever is later, except an action by the trustee for final settlement of his accounts and for his discharge.

3. (a) The relief granted in any such action may include any or all of the following:

(i) Relief to compel an interim or final accounting by the trustee;  to identify and recover trust assets in the hands of any person together with interest accrued thereon from the time of the diversion.  Interest shall be computed at the rate equal to the underpayment rate set by the commissioner of taxation and finance pursuant to subsection (e) of section one thousand ninety-six of the tax law , minus four percentage points;  to set aside as a diversion any unauthorized payment, assignment or other transfer, whether voluntary or involuntary;  to enjoin a diversion;  to recover damages for breach of trust or participation therein;

(ii) Enforcement on behalf of the trust of any right of action constituting a trust asset;

(iii) Determination of the existence and amount of any trust asset or of any trust claim;

(iv) An order terminating or limiting the authority of the trustee in the application of trust assets or of any trust asset, or directing the time and manner of application of a trust asset or part thereof;

(v) An order requiring the trustee to give security to ensure the proper distribution of the trust assets, either during the pendency of the action or thereafter, or to furnish assurance therefor in any other manner, if it appears that there is danger that such assets or asset will be dissipated before judgment or diverted from trust purposes;

(vi) An order for distribution of any trust assets available for distribution, either with respect to the entire trust or with respect to particular assets of the trust, or for retention of particular assets for future distribution.  Where the holder of any trust assets is a trustee or a transferee who received the assets with the knowledge that they were trust funds, an order for distribution and retention for future distribution of any trust assets shall include the amount of diverted funds plus interest from the time of the diversion to the date of such order;

(vii) Settlement of the interim or final account of the trustee;

(viii) Final discharge of the trustee at the termination of the trust, or discharge of the trustee with respect to the application of specific trust assets;

(ix) Such other and further relief as to the court may seem necessary and proper;

(x) Any provisional or ancillary relief incident to any of such relief.

(b) Any relief pursuant to subparagraphs (i), (ii), (iii), (iv), (v), (ix), or (x) of paragraph (a) shall be deemed to be for the benefit of the entire class of trust beneficiaries, including persons who may become trust beneficiaries at any time before the termination of the trust.  Except as provided in subdivision four of this section, relief pursuant to subparagraph (vi) shall also be deemed to be for the benefit of such entire class, but unless the court shall otherwise direct, only those persons shall be entitled to share in any distribution of the trust assets who are trust beneficiaries at the time of entry of the judgment under which distribution is to be made and who have appeared in the action or filed their claims in such manner and within such time as the court shall direct, and whose claims are due and payable at the date for distribution as set by the order of the court and either are undisputed by the trustee or have been determined in the action.

4. If an action to enforce a trust of which the owner is trustee is commenced before the completion or abandonment of the improvement of real property, or home improvement, or if an action to enforce a trust of which a contractor or subcontractor is trustee is commenced before the completion or abandonment of the performance by the trustee under the contract or subcontract, the judgment therein may provide for distribution of the assets then available for distribution among trust beneficiaries whose claims are then payable, and who have appeared in the action or who file their claims within such time as the court shall direct, and the judgment shall so provide unless the court shall determine that in the circumstances equity requires that distribution be deferred to await maturity of other trust claims.

5. If the action to enforce a trust of which a contractor or subcontractor is trustee is brought after the completion or abandonment of the performance of the contract or subcontract but before the completion of the improvement the court may direct that the action be continued to await events by reason of which additional trust assets may become available.

6. For the purposes of any distribution of trust assets, the court may direct that trust claims shown upon a schedule or schedules filed by the trustee shall be deemed to have been filed in the action.

7. An action brought under this article shall not be compromised or discontinued nor dismissed by consent, by default or for failure to prosecute, except with the approval of the court.  On any application for such approval notice shall be given in such manner as the court shall direct.

8. Subject to subdivisions three and four of this section, in any distribution of trust assets pursuant to order or judgment in an action to enforce a trust, the following classes of trust claims shall have preference, in the order named:  (a) trust claims for taxes and for unemployment insurance and other contributions, due by reason of employments, and for amounts of taxes withheld or required to be withheld;  (b) trust claims of laborers for daily or weekly wages;  (c) trust claims for benefits and wage supplements;  (d) claims for any amounts of wages of laborers for daily or weekly wages (other than claims for amounts of taxes deducted and withheld, constituting trust claims for such amounts) actually deducted from payments thereof, pursuant to law or agreement, for remittance to any person on behalf of the laborer or in satisfaction of his obligation, to the extent that such person is entitled to assert, as a trust claim, the claim the laborer would otherwise have for such amount.

Except as provided in this subdivision, trust claims entitled to share in any distribution of trust assets pursuant to order of the court shall share pro rata.


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