trustee defendant in New York

1948(Briggs v. Davis, 20 N. Y. 15 ; Wetmore v. Porter, 92 N. Y. 76 .) Zimmerman v. Kinkle ( 108 N. Y. 282, 287 ) cites with approval the Wetmore case [supra) saying, “ whoever receives property knowing it to be the subject of a trust and to have been transferred by the trustee in violation of his duty or power, takes it subject to the right, not only of the cestui que trust, but also of the trustee to reclaim possession or recover for its conversion ”, and determines that in such an action it is not necessary to bring the plaintiffs before the court in their individual character.

1945While our attention has not been called to any ■ controlling authority of this State precisely in point, the general principle of law is firmly established that whoever receives property knowing it to be the subject of a trust and to have been transferred by the trustee in violation of his duty or power, takes it subject to the right of the trustee or the cestui que trust to reclaim possession (Wetmore v. Porter, 92 N. Y. 76 ; Zimmerman v. Kinkle, 108 N. Y. 282 ; Buffalo Trust Co. v. Leonard, 154 N. Y. 141 ).

2025Lost Profits In its motion for partial summary judgment, the Trustee also argues that in the event it is found liable for breach of fiduciary duty for imprudent investments, its liability is limited to negligence and mismanagement and thus, under Matter of Janes, 90 NY2d 41 (1997), the Objectants' demand for appreciation or lost profits damages must be stricken.

2025Lost Profits In its motion for partial summary judgment, the Trustee also argues that in the event it is found liable for breach of fiduciary duty for imprudent investments, its liability is limited to negligence and mismanagement and thus, under Matter of Janes, 90 NY2d 41 (1997), the Objectants' demand for appreciation or lost profits damages must be stricken.

1948(Briggs v. Davis, 20 N. Y. 15 ; Wetmore v. Porter, 92 N. Y. 76 .) Zimmerman v. Kinkle ( 108 N. Y. 282, 287 ) cites with approval the Wetmore case [supra) saying, “ whoever receives property knowing it to be the subject of a trust and to have been transferred by the trustee in violation of his duty or power, takes it subject to the right, not only of the cestui que trust, but also of the trustee to reclaim possession or recover for its conversion ”, and determines that in such an action it is not necessary to bring the plaintiffs before the court in their individual character.

1945While our attention has not been called to any ■ controlling authority of this State precisely in point, the general principle of law is firmly established that whoever receives property knowing it to be the subject of a trust and to have been transferred by the trustee in violation of his duty or power, takes it subject to the right of the trustee or the cestui que trust to reclaim possession (Wetmore v. Porter, 92 N. Y. 76 ; Zimmerman v. Kinkle, 108 N. Y. 282 ; Buffalo Trust Co. v. Leonard, 154 N. Y. 141 ).

1948(Briggs v. Davis, 20 N. Y. 15 ; Wetmore v. Porter, 92 N. Y. 76 .) Zimmerman v. Kinkle ( 108 N. Y. 282, 287 ) cites with approval the Wetmore case [supra) saying, “ whoever receives property knowing it to be the subject of a trust and to have been transferred by the trustee in violation of his duty or power, takes it subject to the right, not only of the cestui que trust, but also of the trustee to reclaim possession or recover for its conversion ”, and determines that in such an action it is not necessary to bring the plaintiffs before the court in their individual character.

1886Co., 92 N. Y. 98 ; rev’g in part 28 Hun, 274 , In affirmance of a like principle, it was held, that whoever receives property, knowing that it is the subject of a trust, and has been transferred by the trustee in violation of his duty or power, takes it subject to the right, not only of the cestui que trust, but also of the trustee, to reclaim possession or to recover for its conversion. [Citing Briggs v. Davis, 20 N. Y. 15 ; Western R.

1913And to the same effect is Reichard v. Hutton ( 148 App. Div. 813 ).

1913And to the same effect is Reichard v. Hutton ( 148 App. Div. 813 ).

2024Regarding the plaintiffs' motion for a preliminary injunction, the plaintiffs are likely to succeed on their argument that this case presents the type of disruptive land claim that would be barred under the doctrine of City of Sherrill v Oneida Indian Nation of N.Y. ( 544 US 197 ) and, therefore, New York law likely applies to the subject property, and they are likely to succeed on the merits.

2024Moreover, the plaintiffs established a likelihood of success on the merits on the cause of action for removal of obstructions and encroachments pursuant to RPAPL 871, as the record indicated that the State had an easement over the subject property and the structures interfered with that easement ( see Camp Bearberry, LLC v Khanna , 212 AD3d 897, 898-899 ; 91-54 Gold Rd., LLC v Cross-Deegan Realty Corp. , 93 AD3d 649, 650 ; Bailey v Ossi Sport Club, Inc. , 71 AD3d 1069, 1070 ).

2024Moreover, the plaintiffs established a likelihood of success on the merits on the cause of action for removal of obstructions and encroachments pursuant to RPAPL 871, as the record indicated that the State had an easement over the subject property and the structures interfered with that easement ( see Camp Bearberry, LLC v Khanna , 212 AD3d 897, 898-899 ; 91-54 Gold Rd., LLC v Cross-Deegan Realty Corp. , 93 AD3d 649, 650 ; Bailey v Ossi Sport Club, Inc. , 71 AD3d 1069, 1070 ).

2024Nevertheless, there is a difference between demanding that Native American nations and their officials comply with state law and having the means available to force them to do so ( see Kiowa Tribe of Okla. v Manufacturing Technologies, Inc. , 523 US 751 , 755; Gingras v Think Fin., Inc. , 922 F3d at 121 ).

2024We decline to recognize an exception to the Ex parte Young doctrine for actions that merely affect property owned by a Native American nation, without implicating the "particular and special circumstances," including the special sovereignty interests, at issue in Coeur d'Alene ( Idaho v Coeur d'Alene Tribe of Idaho , 521 US at 287 ; see Muscogee [Cr.] Nation v Rollin , ___ F4th at ___, 2024 WL 4471157 , *6-7, 2024 US App LEXIS 25713, *21-26; cf. Jamul Action Comm. v Simermeyer , 974 F3d at 994-995 ). [FN8] For that reason, we respectfully disagree with the decision in Nahno-Lopez v Houser ( 62

2024We decline to recognize an exception to the Ex parte Young doctrine for actions that merely affect property owned by a Native American nation, without implicating the "particular and special circumstances," including the special sovereignty interests, at issue in Coeur d'Alene ( Idaho v Coeur d'Alene Tribe of Idaho , 521 US at 287 ; see Muscogee [Cr.] Nation v Rollin , ___ F4th at ___, 2024 WL 4471157 , *6-7, 2024 US App LEXIS 25713, *21-26; cf. Jamul Action Comm. v Simermeyer , 974 F3d at 994-995 ). [FN8] For that reason, we respectfully disagree with the decision in Nahno-Lopez v Houser ( 62

2024Moreover, the plaintiffs established a likelihood of success on the merits on the cause of action for removal of obstructions and encroachments pursuant to RPAPL 871, as the record indicated that the State had an easement over the subject property and the structures interfered with that easement ( see Camp Bearberry, LLC v Khanna , 212 AD3d 897, 898-899 ; 91-54 Gold Rd., LLC v Cross-Deegan Realty Corp. , 93 AD3d 649, 650 ; Bailey v Ossi Sport Club, Inc. , 71 AD3d 1069, 1070 ).

2024Footnote 4: 25 USC § 2703 (4) defines "Indian lands" as "(A) all lands within the limits of any Indian reservation; and (B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States government against alienation and over which an Indian tribe exercises governmental powers" ( see Michigan v Bay Mills Indian Community , 572 US at 785 n 1; Cayuga Indian Nation of N.Y. v Gould , 14 NY3d 614, 637 ).

2024However, since objections were filed here, i.e., issue has been joined, the court will treat the Trustee's motion as one for summary judgment pursuant to CPLR 3212 (see Tufail v Hionas, 156 AD2d 670 [2d Dept 1989] [where issue had been joined, court should not have deemed unlabeled motion as motion to dismiss, but rather as one for summary judgment], citing Rich v. Lefkovits, 56 NY2d 276 [1982]). [* 1] remainder is distributable to Gail's issue, Melinda Koster and Jonathan Koster.

2024Because the plaintiffs are proceeding under an Ex parte Young theory against the Trustee defendants, the court may enjoin the Trustee defendants, who are Nation officials acting in their official capacity, from ongoing violations of the law ( see Hutto v Finney , 437 US at 690 ; Edelman v Jordan , 415 US at 664 ; Salt Riv.

2024Because the plaintiffs are proceeding under an Ex parte Young theory against the Trustee defendants, the court may enjoin the Trustee defendants, who are Nation officials acting in their official capacity, from ongoing violations of the law ( see Hutto v Finney , 437 US at 690 ; Edelman v Jordan , 415 US at 664 ; Salt Riv.

2024In addition, as the parties do not point to any other forum in which this action could be commenced, there does not appear to be any risk of prejudice to the Nation from multiple judgments ( see Kansas v United States , 249 F3d at 1227; cf. Swezey v Merrill Lynch, Pierce, Fenner & Smith, Inc. , 19 NY3d at 552-553 ).

2024The Nation is not a foreign sovereign, and this case is proceeding against the Trustee defendants under an Ex parte Young theory ( cf. Republic of Philippines v Pimentel , 553 US 851 [involving the Republic of the Philippines]; Swezey v Merrill Lynch, Pierce, Fenner & Smith, Inc. , 19 NY3d 543 [same]; see generally Michigan v Bay Mills Indian Community , 572 US at 795 ; Gingras v Think Fin., Inc. , 922 F3d at 121 ).

2024Although members of a Native American nation, "even officials, are amenable to suit if the subject of the suit is not related to the officials' performance of official duties" ( id. ; see Puyallup Tribe, Inc. v Department of Game of Wash. , 433 US 165, 171 ), here, the amended complaint alleged that each of the Trustee defendants acted in their official capacities.

2024Passenger Corp. v McDonald , 978 F Supp 2d 215, 231 [SD NY], affd 779 F3d 97 [2d Cir]).