Opinion
Index No. CV-13617-21/BX
09-08-2022
Nazzie LIVERMAN-BROOKS, Plaintiff, v. Soloman LIVERMAN, Defendant.
Nazzie Liverman-Brooks, plaintiff pro se. Soloman Liverman, defendant pro se.
Nazzie Liverman-Brooks, plaintiff pro se.
Soloman Liverman, defendant pro se.
Jeffrey S. Zellan, J. Plaintiff brings this action against defendant seeking a judgment for $7,200.00, alleging that defendant has wrongfully converted funds from a joint bank account plaintiff held with the parties’ mother, J.L. Following a bench trial and upon consideration of the credible testimony and evidence adduced at that trial, the Judgment of the Court is as follows: Judgment for defendant.
The Court refers to the parties’ mother by her initials given the sensitivity of the matters discussed in this decision.
The parties do not dispute that this case, principally and tragically, concerns the parties’ management of the affairs of J.L., who is suffering from mental decline caused by Alzheimer's Disease. The parties also do not dispute the following:
1. Plaintiff and J.L. maintained a joint bank account;
2. Defendant also had access to that account as attorney-in-fact to J.L.;
3. J.L. executed a durable power of attorney dated September 20, 2020 and appointing plaintiff as J.L.’s attorney-in-fact pursuant to New York law (the "September 2020 POA");
4. J.L. subsequently executed a second durable power of attorney dated July 24, 2021 appointing defendant as J.L.’s attorney-in-fact pursuant to Connecticut law (the "July 2021 POA");
5. The parties’ mother subsequently executed a third durable power of attorney dated January 4, 2022 appointing defendant as J.L.’s attorney-in-fact pursuant to Connecticut law (the "January 2022 POA"); and
6. The Connecticut Court of Probate, Stratford County, appointed defendant conservator of J.L.’s person and estate pursuant to Connecticut law by order dated February 10, 2022 in Estate of/Matter of [J.L.] , Docket No. 22-00017 (the "Connecticut Order");
Upon review of the testimony and evidence, the claim at issue is, in essence, whether defendant has been a ‘faithless servant’ to J.L. and taken advantage of his role as J.L.’s caretaker for his own and his wife's benefit. Specifically, plaintiff alleges that defendant used money from the joint account for his and his wife's benefit rather than J.L.
As a threshold issue, the Court must consider plaintiff's standing to bring this action, and finds that plaintiff may not prosecute any claim absent a showing of personal harm rather than harm to J.L. As pled, plaintiff alleges that plaintiff stands as attorney-in-fact for J.L. as conferred by the September 2020 POA. By its own terms, the September 2020 POA was executed and governed by New York law, specifically General Obligations Law § 5-1501 et seq. Plaintiff's powers as attorney-in-fact were revoked by J.L. in the July 2021 POA (at Art IV(3), and annexed Revocation of Power of Attorney Form), nearly a month prior to plaintiff commencing this action on or about August 16, 2021. General Obligations Law § 5-1511(1)(c). Further, to the extent any power remained, the Connecticut Court of Probate expressly suspended all powers of attorney granted by J.L. (Connecticut Order, at 2) upon a finding that J.L. was incapacitated, which the Court finds would suspend any vestigial power plaintiff had as attorney-in-fact pursuant to General Obligations Law § 5-1511(1)(h), and that even if plaintiff had had standing to initially commence an action on behalf of J.L., plaintiff's standing to continue to prosecute the instant action on behalf of J.L. was extinguished by the Connecticut Order, which appointed defendant as conservator of J.L.’s person and estate. As a result, any claims asserted on behalf of J.L. are dismissed.
Plaintiff's ability to assert J.L.’s interests in litigation is additionally questionable in that J.L. did not initial the powers on the September POA form for plaintiff to engage in banking transactions or pursue claims and litigation on behalf of J.L., despite clear instructions on the form itself to initial which specific powers are being conferred, as indicated in the September 2020 POA, at 3-5. Instead, there is a typewritten "X" beside each respective power rather than even a handwritten mark, let alone initials as instructed. Notably, this is in contrast to the powers of attorney granted to defendant, in which J.L. initialed powers as instructed.
To the extent any of plaintiff's claims are premised on conversion of her own funds held in the joint account, the Court finds that plaintiff has standing to prosecute the instant action on that basis, but finds that plaintiff has not sufficiently established a claim for which relief can be granted. Plaintiff held a joint account with J.L., where the evidence before the Court indicates that plaintiff and J.L. each held undivided interests to the account. There is nothing in the record to indicate that J.L. lacked authority to expend any money in that account in any manner in which J.L. saw fit, or that J.L. could not allow defendant to withdraw money in her name or through the use of access (such as a debit card) in J.L.’s name. Nothing in the September 2020 POA limited J.L.’s ability to do so, as expressly noted in the instructions included as part of the form itself, which plaintiff acknowledged having read before a notary public of this state (September 2020 POA, at 1 and 12). From July 24, 2021, defendant's authority to withdraw funds in J.L.’s name was unequivocal (July 2021 POA, at 3; and Connecticut Order at 2). The Court also notes that, at least between July 24, 2021 and February 10, 2022, defendant was entitled not only to reimbursement for expenses as J.L.’s attorney-in-fact, but "reasonable compensation for services provided to [J.L.]," pursuant to the July 2021 POA. Plaintiff has not established that any funds withdrawn by defendant beyond those necessary for J.L.’s care were not themselves authorized by J.L. or beyond what defendant could claim as reasonable compensation when authorized. Consequently, any claims asserted on plaintiff's own behalf regarding her own alleged funds is dismissed. Finally, as plaintiff's case concerns whether defendant has faithfully discharged his role as J.L.’s caretaker, either informally or later as attorney-in-fact and then as conservator, and as J.L. has been a resident of Connecticut since prior to the commencement of this action, defendant's obligations to J.L. have been expressly governed by Connecticut law since July 24, 2021. Principles of comity and the domestic relations doctrine urge deferring to the Connecticut courts to address whether defendant has or is faithfully executing his duties to J.L., especially as defendant now acts under the express appointment of the Connecticut Court of Probate. See, e.g., Goei v. Duhamel , Dkt. No. 07-cv-1273, 2009 WL 10726873, *1, 2009 U.S. Dist. LEXIS 142942, *2-3 (W.D. Mich. Jul. 30, 2009) (declining to appoint a conservator). "These matters are best handled by state probate judges, who are well-versed in the requirements of state law and handle like matters on an ongoing basis," especially when they are, as here, already involved in this specific case. Id. , at *1, 2009 U.S. Dist. LEXIS 142942, at *3. Thus, while the Court dismisses this action in its entirety, it expressly does so without prejudice to plaintiff asserting claims against defendant related to defendant's role as caretaker or conservator in an appropriate venue in Connecticut.
Defendant's express power to claim reasonable compensation pursuant to the July 2021 POA is a material difference from the powers conferred upon plaintiff in the September 2020 POA, and between New York law (which presumes that an attorney-in-fact will perform without compensation) and Connecticut law (which presumes that an attorney-in-fact is entitled to compensation), but in any event was within J.L.’s discretion to grant. Compare , General Obligations Law § 5-1506(1) with Conn. Gen. Stat. § 1-350k.
Accordingly, it is
ORDERED that the clerk enter judgment in favor of defendant dismissing this action.
This constitutes the Decision and Order of the Court.