balanced and perceptive analysis in New York

2026First, the prudent person standard requires "a balanced and perceptive analysis of [the fiduciary's] consideration and action in the light of the history of each individual investment, viewed at the time of its action or its omission to act" ( Matter of Bank of N.Y. , 35 NY2d 512, 519 [1974]).

2007In making this determination, a court should perform “ ‘a balanced and perceptive analysis of [the fiduciary’s] consideration and action in . . . light of the history of each individual investment, viewed at the time of its action or its omission to act’ ” (Matter of Donner, 82 NY2d 574, 585 [1993], quoting Matter of Bank of N.Y., 35 NY2d 512, 519 [1974]).

2015“Whether a surcharge should be imposed . . . depends on ‘a balanced and perceptive analysis of [petitioner’s] consideration and action in the light of the history of each individual investment, viewed at the time of its action or its omission to act’ ” (Donner, 82 NY2d at 585 ).

2007In making this determination, a court should perform “ ‘a balanced and perceptive analysis of [the fiduciary’s] consideration and action in . . . light of the history of each individual investment, viewed at the time of its action or its omission to act’ ” (Matter of Donner, 82 NY2d 574, 585 [1993], quoting Matter of Bank of N.Y., 35 NY2d 512, 519 [1974]).

2026Further, a corporate fiduciary must exercise the due care and skill it holds itself out as possessing, which includes, among other things, undertaking a formal analysis, establishing a sound investment plan and conducting more than routine reviews ( see Matter of Janes , 90 NY2d at 54 ).

2015In engaging in “a balanced and perceptive analysis of [petitioner’s] consideration and action in light of the history of each individual investment, viewed at the time of its action or its omission to act[,3 . . . [and viewing] [petitioner’s] conduct over the entire course of the investment” (Janes, 90 NY2d at 50 [internal quotation marks omitted]), we conclude that petitioner acted prudently with respect to Trust II.

1997And, while a court should not view each act or omission aided or enlightened by hindsight (see, Matter of Bank of N. Y., supra, at 519; see also, Matter of Clark, 257 NY 132, 136 ; Purdy v Lynch, supra, at 475-476), a court may, nevertheless, examine the fiduciary’s conduct over the entire course of the investment in determining whether it has acted prudently (see, Matter of Donner, supra, at 585-586).

1993Thus, our inquiry becomes whether the record supports the finding that the coexecutors did not act in good faith and failed to exercise " ' "such diligence and such prudence in the care and management [of the fund], as in general, prudent men of discretion and intelligence in such matters, employ in their own like affairs” ’ ” (id., at 518-519, quoting Matter of Clark, 257 NY 132, 136 ).

1997And, while a court should not view each act or omission aided or enlightened by hindsight (see, Matter of Bank of N. Y., supra, at 519; see also, Matter of Clark, 257 NY 132, 136 ; Purdy v Lynch, supra, at 475-476), a court may, nevertheless, examine the fiduciary’s conduct over the entire course of the investment in determining whether it has acted prudently (see, Matter of Donner, supra, at 585-586).