Opinion
068690/2014
04-27-2015
Chris Allen and KIMBERLY ALLEN, Plaintiffs, v. Richard D. Longworth, THE GLENA E. JAGGER REVOCABLE TRUST OF 2005, & JANICE E. LONGWORTH, Individually and as Trustee of the Glena E. Jagger Revocable Trust of 2005., Defendants.
PLAINTIFFS' ATTY: PEDOWITZ & MEISTER, ESQS. By: Arnold Pedowitz, Esq. 570 Lexington Avenue, 18th Floor New York, NY 10022 DEFENDANTS' ATTY: ANTHONY DeCAROLIS, ESQ. 53 East Main Street Oyster Bay, NY 11771
PLAINTIFFS' ATTY:
PEDOWITZ & MEISTER, ESQS.
By: Arnold Pedowitz, Esq.
570 Lexington Avenue, 18th Floor
New York, NY 10022
DEFENDANTS' ATTY:
ANTHONY DeCAROLIS, ESQ.
53 East Main Street
Oyster Bay, NY 11771
James Hudson, J.
Upon the following papers numbered 1-23 read on this motion To Dismiss; Notice of Motion/ Order to Show Cause and supporting papers 1-6; Notice of Cross Motion and supporting papers 0 ; Answering Affidavits and supporting papers 7-20; Replying Affidavits and supporting papers 21-22; Other 23 ; (and after hearing counsel in support and opposed to the motion),
"The wavering mind is but a base possession." Euripides' observation reminds us that the law and equity embrace certainty while scorning the vagaries of human conduct.
The matter at hand is an action arising from a dispute concerning an alleged gift of an easement and/or subdivision of certain property in Southampton, New York. Defendants have moved for dismissal in lieu of an answer on the basis of documentary evidence and for failure to state a cause of action (CPLR 3211 §§[a][1] and [7]) . The Plaintiffs oppose the motion and make the following allegations of fact:
In 2002, The Plaintiffs purchased a house and realty in Southampton Village which they operate as a Bed and Breakfast. The adjoining parcel was owned by the decedent, Ms. Glena Jagger. Mr. Allen met Ms. Jagger and they became close friends. He requested, and she acceded, to his request that he use a small portion of her property to be able to access the rear of his own parcel. In 2005, Ms. Jagger executed a document whereby title to her property was conveyed to a revocable Trust. The Defendant Mr. Longworth was the attorney for Ms. Jagger and prepared the Trust documents. In 2012, Ms. Jagger unfortunately passed away.
The verified complaint recites, inter alia :
17.During a number of their conversations Glena expressed that she did not want the property abutting the Bed & Breakfast to be developed and she assured Chris that he would always have access to the rear of the property via the field.
18.In or around 2009, Chris and Glena discussed how to protect the field for Chris' use. Glena said she would discuss with Richard her desire to protect the field for Chris because ... "the Trust would have to be modified in order to accomplish that result"....
25.Richard thereafter told Chris that in order to get the subdivision approved, Chris would have to pay all the costs of the subdivision which would exceed $180,000. The aforesaid costs included expenses unrelated to the parcel of land that was to be conveyed to Plaintiffs and was, on information and belief, deliberately padded by Richard as a means for delaying Chris and defeating Glena's gift.
26.Chris could not afford the exorbitant cost, told that to Richard, and the transfer was changed by Glena to be a gift to Plaintiffs of a portion of the field; namely the Strip...
27.Richard was advised of the reduction in the size of the Strip and discussed it with Chris.
28.Richard told Chris that he would not transfer the Strip then because he did not want to modify the Trust and said he would do it when Glena died. Plaintiffs did not want to unduly stress Glena, relied on Richard's good faith and representations, continued to provide help to Glena, and deferred taking any action to formalize the transfer.
29.Glena made clear that as the decision maker she had given Plaintiffs an unrestricted license, or easement, to use the Field for so long as they owned the Bed & Breakfast, to access the Bed & Breakfast. Plaintiffs understood that the license would end when the Strip was deeded to them at which time they would only use the Strip...
39.On May 28th, 2012 Glena died...
42.Richard stated that regardless of whether Chris purchased the entire parcel of land or not, Chris would receive his promised 20' strip...."
Based on the forgoing recitation of facts, Plaintiffs assert five causes of action
First Claim
"57.But for Richard's saying that for reasons of convenience to the Trust he would complete the transfer after Glena died, Glena and Plaintiffs would have made sure that it would be done during Glena's life.
58.Plaintiffs relied to their detriment on Richard's representation that he would complete the transfer after Glena dies and therefore took no action to have Glena complete the transfer during her life.
59.Richard's aforesaid representation was false when made and was made with the intention of having Glena and Plaintiffs cease from insisting that the transfer be effectuated.
Second Claim
(Declaratory Judgment)
62.Defendants have repudiated and/or rejected and/or disavowed the gift by Glena, as Trustee of the Trust, to Plaintiffs and have failed and refused to convey the Strip to Plaintiffs.
64.Plaintiffs seek a judicial determination that a gift of the Strip was duly made.
Third Claim
(Constructive Trust)
66.An oral agreement was made and entered into between Plaintiffs and Glena, as Trustee, manifesting the intent that the Strip was gifted and title was to be transferred to Plaintiffs. A license and/or easement to have the free and unrestricted right to use the Field until the Strip was transferred was also given. Defendants Richard and Janice were aware of the agreement and respectively knew that it was their legal duty to effectuate the transfer and/or to preserve the Field for Plaintiffs use under the license until the Strip was transferred.
67.By operation of such agreement, Plaintiffs acquired an interest in the Field and the Strip.
Fourth Claim
(Specific Performance)
73.The parties entered into an oral agreement which provided that a gift of the Strip was made by Glena and for the formalities of the transfer of the Strip to take place upon Glena E. Jagger's death...
75.Defendants are in breach of their obligations, Plaintiffs have fully performed their obligations, and Plaintiffs are entitled to specific performance conveying the Strip to Plaintiffs.
Fifth Claim
(Injunctive Relief)
77.Plaintiffs will face undue hardship if Defendants are permitted to sell the Strip to a future purchaser of the property.
78.Plaintiffs request the Court to issue an injunction enjoining Defendants from taking any action to sell the Strip....and enjoining Defendants to deed the Strip to Plaintiffs."
In addition to the complaint, Plaintiffs have submitted evidence in the form of affidavits, copies of emails and a copy of a portion of the revocable Trust document. In our efforts to find facts upon which a credible theory of recovery can be based (and thus defeat the instant motion), we have considered these exhibits pursuant to Subdivision [c] of Rule 3211.
In his affidavit dated December 19th, 2014 Mr. Allen states in pertinent part that "...Ms. Jagger told me that she wished for me to continue to have access to her property via her land for as long as I lived or for as long as I own and operate the bed and breakfast" (para 5). That the decedent "...instructed her attorney, Richard Longworth to modify her revocable Trust" (para 6). However, "...when Ms. Jagger learned that I could not afford the cost of the subdivision, she further directed Mr. Longworth to modify her revocable Trust so that I would be given title to a smaller portion of her land..." (para 7). "Mr Longworth later told me...that he would transfer the strip upon her death" (para 8). "I understood what Mr. Longworth said to mean that the gift was accomplished and all that remained was the ministerial act of doing the paperwork" (para 9). "I relied on what Mr. Longworth said and therefore took no action to have him do the work during Ms. Jagger's life" (para 10). "At Ms. Jagger's funeral in May 2012, Mr. Longworth again promised that he would transfer the strip as directed by Ms. Jagger" (para 11).
The Plaintiffs also submitted an affidavit from Ms. Nanette Stillman, dated Dec 23, 2014. She related, inter alia, that she was Ms. Jagger's caretaker from 2009 until 2012 and observed that the decedent was close friends with the Plaintiffs. Ms. Jagger told her many times that she wanted to give Plaintiffs a piece of her property so that they could access their land. The land was to consist of "A strip of land along the border" (para 7). In describing the source of possible acrimony between herself and the Defendants, Ms. Stillman stated "I believe that Mr. and Mrs. Longworth learned about what I pointed out to Ms. Jagger..." (para 14). Finally, after Ms. Jagger's demise, "At [her] memorial service I heard Mr. Longworth tell Mr. Allen that he, Mr. Longworth, knew Ms. Jagger wanted him to have a piece of land and that it was in the works" (para 18). "I took what Mr. Longworth said to mean that Mr. Longworth was doing what needed to be done so that the piece of land would be transferred to Mr. Allen" (para 19).
The series of e-mails purporting to be between Mr. Allen and Mr. Longworth relate the following:
Dated 9/19/12, from Mr. Longworth
"...I asked Brian if his purchaser would honor the transfer of the 20' strip of land to you and he indicated the buyer would probably agree to that...."
Dated 9/19/12, from Mr. Allen
"To confirm, yes we still want the 20ft and are willing to pay for the lot line adjustment costs that this will entail. I have a call in to our bank to see if they can press the local appraiser for a figure and therefore move the funding process along."
Dated 9/19/12, from Mr. Longworth
"...We would like to consider givin (sic) you an easement at closing for the use of the 20 feet but we would like to discuss it with you and you (sic) attorney and probably have your attorney discuss it with the buyer's attorney as far as the terms, use, duration, etc.....".
Dated 9/24/12, from Mr. Allen
"Please call Mr. John Bennett of Bennett & Reid...who are acting as our lawyers for the transfer of the 20 feet."In Plaintiffs' answering papers, counsel relates "...Plaintiffs therefore consent to the dismissal without prejudice of Janice Longworth, in her individual capacity only, and a stipulation to that effect is being sent to Defendants." (memorandum of law dated December 26th, 2014 page 12). Accordingly, the portion of the motion relating to Ms. Longworth is granted and the complaint against her is dismissed, without prejudice, as unopposed.
In support of the motion to dismiss, Defendants cite to authority including the cases of: Goshen v. Mutual , 98 NY2d 314; Held v. Kaufman , 91 NY2d 425; Baron v. Galasso 83 AD3d 626; Joseph Martin Jr. Delicatessen v. Schumacher 52 NY2d 105; Leon v. Martinez 84 NY2d 83; Baron v. Galasso , 83 AD3d 626; Schwartz v. Miltz , 77 AD3d 723; Gannon v. McGuire 160 NY 476, 25; McCarthy v. Pieret 281 NY 407; Ossining UFSD v. Anderson , 73 NY2d 417; Estate of Spivey v. Pulley 138 AD2d 563; Vermont Mut. Ins Co. V. McCabe , 105 AD3d 837; Pace v. Raisman , 95 AD3d 1185; Williams v. Eason 49 AD3d at 866; Sharp v. Kosmalski , 40 NY2d 119; O'Brien v. Dalessandro , 43 AD3d 1123; Marini v. Lombardo , 79 AD3d 932; and NY Jur Gifts §14.
In opposition to the motion, Plaintiffs draw the Court's attention to cases such as : Yue Fung USA v. Novelty , 105 AD3d 840 [2nd Dept.2013]; Barr v. Wackman , 46 NY2d 371; Sunset v. Mett's , 103 AD3d 707; Leon v. Martinez 84 NY2d 83; Woss v. Eckford , 102 AD3d 860; Irondequit Bay v. Nalews , 123 Misc 2d 462; Matter of Carey 236 AD2d 781; Dawson v. Vasquez 139 Misc 2d 588; EBC I v. Goldman Sachs , 5 NY3d 11; First Keystone v. Ddr , 74 AD3d 1135; Societe Generale v. U.S. Bank National Ass'n , 325 F.Supp2d 435; Apollo v. Halpern , 55 AD3d 855; Estate of Ziegler , 170 Misc.748; Philo Smith v. US life , 420 F. Supp 1266; Woolley v. Steward 222 NY 347; Pinkava v. Yurkiw , 64 AD3d 690; Nicolaides v. Nicolaides 173 AD2d 448; Messner Vetere Berger v. Aegis , 93 NY2d 229; MSL Productions v. IMR 41 Misc 3d 649; Rock v. Rock , 100 AD3d 614; Williams v. Eason 49 AD3d 866; Estate of Schneider v. Finman , 15 NY3d 306; Ginsburg v. Carbone , 85 AD3d 1110; Fredrickson v. Fredrickson , 30 AD3d 370; Zinnanti v. 513 Woodward , 105 AD3d 736; Simonds v. Simons , 45 NY2d 233; Reiner v. Reiner 100 AD2d 872; Bower v. Bower , 42 Misc 3d 1231(A); Amato v. Amato , 24 Misc 3d 1216(A); Bankers Sec. V. Shakerdge 49 NY2d 939; and Lipton v. Donnenfeld , 5 AD3d 356.
We have reviewed the aforementioned authority and wish to commend both Mr. Pedowitz and Mr. DeCarolis for their eloquent arguments which are a credit to their respective clients.
Defendants have moved pursuant to CPLR 3211§§ [a] [1] and [7]. These subdivisions are intrinsically different and require differing analysis by the Court. Dismissal under § 3211 [a][1] "is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Yue Fung USA Enterprises, Inc. v. Novelty Crystal Corp . 105 AD3d 840, 963 N.Y.S.2d 678 [2nd Dept.2013]; Goshen v. Mutual , 98 NY2d. 314, 746 N.Y.S.2d 858 [2002]). In contrast, a motion to dismiss pursuant to CPLR § 3211 [a] [7], requires the Court to sift through the pleadings and-separating gold from dross-determine if there is any cognizable theory of recovery that can coupled with the asserted facts ( Sokoloff v. Harriman Estates Development Corp ., 96 NY2d 409, 729 NYS 2d 425 [2001]).
Both of these subsections of statute, however, are governed by a time honored caveat. One would do well to remember the parable of the man who built his home upon the sand. The most carefully and elegantly constructed edifice will fall without a sufficient foundation. The most eloquently worded pleading must fail if the underlying facts do not support it. Unfortunately for the Plaintiffs, the law does not provide succor for their claims.
The documentary proof relied upon in the CPLR § 3211[a][1] application is the revocable Trust (Defendants' Exhibit "A"). As demonstrated by the movants, there is no way in which this document could be construed as conferring the status of Trustee on the Defendant Mr. Longworth. Plaintiffs' speculation as to a missing portion of the subject document is just that-speculation. We have reviewed the full page in Plaintiffs' Exhibit 2 and it is apparent that there was a copying error. To reference this as an ambiguity "...based on glaring facial deficiencies." (Plaintiffs's memorandum of law page 7) is chimerical. The subject matter of the mis-paginated portion of the Trust has no bearing on any of the issues before us. Thus, any claims against Mr. Longworth arising out of the purported duties as a Trustee are, based on documentary evidence, demonstrably false and must be dismissed. The remainder of the Court's analysis is confined to an application of CPLR § 3211[a][7].
As a starting point the Court asks-what claim would the Plaintiffs have against Ms. Jagger if she was still alive? As discussed herein, the answer is none. Not in contract, equity or fraud. Shorn of a claim against Ms. Jagger herself, it is a slender reed that remains against the living parties. At the conclusion of our analysis, that too lies broken.
Plaintiffs contend that there was a firm agreement of conveyance. Defendants argue that any contractual agreement to convey an interest in the subject realty is violative of the principle "...that a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" Joseph Martin Jr. Delicatessen v. Schumacher 52 NY2d 105, 110, 436 N.Y.S.2d 247 [1981] citing Willmott v. Giarraputo , 5 NY2d 250, 253, 184 N.Y.S.2d 97; Sourwine v. Truscott , 17 Hun. 432, 434). We agree with the Defendants' argument. Plaintiffs' protestations to the contrary, the agreement with the decedent-to convey an interest in her property- went through significant changes. Initially a subdivision, it then changed to an easement. The manner in which this was to be accomplished was something that never was quantified other then, eventually, it was to occur after Ms Jagger's death. Plaintiffs' failure to negotiate this specific (and critical) item is fatal to any claim under a theory of contract.
Defendants also argue that any claim is barred by the Statute of Frauds on the basis of a failure to reduce the purported understanding to writing (GOL 5-703, derived from 29 Charles II, Ch. 3, 8 Stat at Large 405 [1677]). As pointed out by Plaintiffs, however, the Statute of Frauds cannot be used as a shield against a properly pled action sounding in fraud ( Channel Master Corp. v. Aluminum Limited Sales , Inc . 4 NY2d 403, 151 N.E.2d 833 [1958]). Nor will it prevent a valid claim invoking promissory estoppel ( Ginsberg v. Fairfield-Noble Corp. 81 AD2d 318, 440 N.Y.S.2d 222 [1st Dept. 1981]). The claims sounding in fraud, promissory estoppel and a constructive trust will be discussed ad seriatim.
We will examine the claim of the Plaintiffs sounding in fraud. "[A] cause of action alleging fraud must be pleaded with the requisite particularity pursuant to CPLR § 3016(b)." Pace v. Raisman & Associates , Esqs ., LLP , 95 AD3d 1185, 945 N.Y.S.2d 118 [2nd Dept 2012]. Specifically, it must be alleged that "(1) the Defendant made a false representation of fact, (2) the Defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the Plaintiffs's reliance, (4) there was justifiable reliance on the part of the Plaintiffs, and (5) the Plaintiffs was injured by the reliance" (Id at 1189).
Applying well settled law to the claimed facts, it is clear that elements (3), (4) and (5) have not been alleged with sufficient particularity. We note the Plaintiffs' use of phrases such as "...would have made sure that it would be done during Glena's life" or that they "deferred taking any action to formalize the transfer." This is patently inadequate. The transfer did not take place. Plaintiffs would have the Court presume, from this undisputed fact, that fraud was the reason. The law engages in no such presumption of opprobrium. "While there is no requirement that there be "unassailable proof at the pleading stage," the basic facts constituting the fraud must be set forth...CPLR § 3016 (b) is satisfied when the facts suffice to permit a reasonable inference of the alleged misconduct" ( Pace v. Raisman & Associates , Esqs ., supra, quoting Eurycleia Partners , LP v. Seward & Kissel , LLP , 12 NY3d 553, 883 N.Y.S.2d 147, 910 N.E.2d 976). Plaintiffs' assertions that Defendant Mr. Longworth was "...manipulating the Trust and goodwill between the parties" and words to that effect, fall woefully short of the specifics required by the controlling statute ( Kanterakis v. Kanterakis , 125 AD3d 814, —- N.Y.S.2d —&mdash, [2nd Dept.,2015]; Brualdi v. Iberia , 79 AD3d 959, 913 N.Y.S.2d 753 [2nd Dept.,2010]).
Plaintiffs' reliance on the holding in Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Group PLC , 93 NY2d 229,689 N.Y.S.2d 674 [1999] is most telling. The facts in Messner involved the rental of commercial property pursuant to a written lease. The defendant corporate successor to the original lessor allegedly entered an oral agreement to "assume direct responsibility for all obligations under the Lease" (Id. at 233). In seeking to enforce this agreement, the plaintiff landlord argued that the Statute of Frauds was inapplicable. The quote that plaintiffs' counsel in the instant case relies on- "it would be a fraud to allow one party to a real estate transaction to escape performance after permitting the other party to perform in reliance on the agreement"- is actually used by the Court of Appeals solely within the context of part performance (Id. 235). The Court finishes the paragraph with "Part performance alone, of course, is not sufficient. The performance must be unequivocally referable to the agreement".
The Messner Court also opined "A party may... lose the benefit of the defense of the Statute of Frauds, or waive its protection, by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter [the] situation and make the interposition of the statute against performance a fraud [cites omitted]" (Id at 235). Indeed, this Court finds the decision in Messner to be controlling. As in that case, the plaintiffs herein ""took no action" with respect to the parties' pre-existing written agreement, in reliance on the alleged existence of an oral agreement" (Id. 236). Where the facts in this case differ from those in Messner , we find that they are more favorable to the defense. Thus, we are moved to quote Judge Smith, speaking for a unanimous Court "Plaintiff's inaction, as pleaded, is insufficient to defeat a Statute of Frauds defense. As Judge Cardozo warned, "The peril of perjury and error is latent in the spoken promise" (Burns v. McCormick , 233 NY 230, 234, 135 N.E. 273, supra ). Hence, careful pleading is required to overcome the heavy burden created by the Statute of Frauds (General Obligations Law § 5—703; cites omitted")(Id. at 236).
Accordingly, we find that since plaintiffs have failed to adequately plead the elements of fraud with sufficient particularity the instant action is barred by G.O.L § 5-703.
Plaintiffs contend that they have alleged a viable claim for promissory estoppel and rely upon the holdings in cases such as Rock v. Rock , 100 AD3d 614 and Williams v. Eason 49 AD3d 866. The Court finds that the authority cited by Plaintiffs actually advances the defense. "The elements of a cause of action based upon promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise" ( Rock v. Rock, supra, at p.616). The Court in Rock and similar case law, are following an accepted principle of equity expressed in American Bartenders School , Inc. v. 105 Madison Co. 59 NY2d 716, 450 N.E.2d 230, 463 N.Y.S.2d 424 NY [1983]: "The purpose of invoking the doctrine is to prevent the infliction of unconscionable injury and loss upon one who has relied on the promise of another ( 3 Williston , Contracts [3d ed], § 533A, at p. 798; Imperator Realty Co. v. Tull , 228 NY 447, 453, 127 N.E. 263)." When the facts as pled by Plaintiffs are compared with the fact patterns of any of the cases cited by Plaintiffs or Defendants, the paucity of the complaint in the case at bar is glaringly apparent.
On the issue of whether a claim for a constructive trust has been pled, the case law offered by both Plaintiffs and Defendants is relied upon and set forth in the recent opinion of Canzona v. Atanasio ; 118 AD3d 837; 989 N.Y.S.2d 44 [2 Dept.,2014] wherein the Court stated that "The equitable remedy of a constructive trust may be imposed " [w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest' " (cites omitted). "The elements of a cause of action to impose a constructive trust are (1)the existence of a confidential or fiduciary relationship, (2)a promise, (3)a transfer in reliance thereon, and (4)unjust enrichment" (cites omitted). (Id. at 839-840).
Defendants contend that the lack of privity between Mr. Allen and Mr. Longworth serves as a bar to the claim for a constructive trust ( Spivey v. Pulley 138 AD2d 563, 526 N.Y.S.2d 145 [2nd Dept.1988]). As pointed out by plaintiffs' counsel, the Court in Estate of Schneider v. Finmann 15 NY3d 306, 907 N.Y.S.2d 119 [2010] held "strict privity remains a bar against beneficiaries' and other third-party individuals' estate planning malpractice claims absent fraud or other circumstances [emphasis ours]" (Id. At 310). Therefore, if plaintiffs sufficiently articulate fraud on the part of the defendants, privity no longer acts as a shield. As discussed in this opinion, however, they have failed to do so.
A claim for a constructive trust does not demand that the claimant allege a prior interest in the locus in quo. It is incumbent on the Plaintiffs, however, to assert that they have contributed "funds, time or effort to the property in reliance on a promise to share in some interest in it" (Henness v. Hunt , 272 AD2d 756, 708 N.Y.S.2d 180, 3rd Dept. 2000] citing Lester v. Zimmer , 147 AD2d 340, 342, 542 N.Y.S.2d 855). The Plaintiffs never assert that Mr. Allen's assistance to Ms. Jagger was as a quid pro quo for use of the field or that his companionship and agreeing to become her health care proxy were in any way performed in reliance on a promise to convey an easement or other interest. Instead, the "reliance" set forth by Plaintiffs' concern the Defendant's alleged obligation to complete the conveyance of a gift. This crucial distinction acts to defeat a claim for a constructive trust.
Plaintiffs' act as if the facts as pled allow an inference that they obtained title to a portion of Ms. Jagger's field or an easement thereto. Since no consideration for such a transaction is alleged, nor adverse possession (or a prescriptive easement) the sole means by which ownership could be garnered would be by gift either inter vivos or in causa mortis.
In order for there to be a valid gift in causa mortis, three elements must be proven (1) it must be made in contemplation of death of a specific peril (2) the item or title must be delivered and (3) the donor must perish ( In re Hennessy's Estate 253 A.D. 6, 300 N.Y.S. 766 [1st Dept. 1937] see also, Matter of Swanson 109 AD2d 844, 486 N.Y.S.2d 370 [2nd Dept.,1985]. An inter vivos gift requires an "...intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee." Mirvish v. Mott 18 NY3d 510, 518 [2012] quoting Gruen v. Gruen , 68 NY2d 48, 53, 505 N.Y.S.2d 849 [1986].
As a corollary to the above elements it is also the rule that "... a gift cannot be made to take effect in possession in futuro. Such a transaction amounts only to a promise to make a gift, which is nudum pactum." '(In re Estate of Abraham Abramowitz , 38 AD2d 387, 392, 329 N.Y.S. 2d 932, 938 (2d Dep't 1972) aff'd 32 NY2d 654, 342 N.Y.S.2d 855). In the case of Dougherty v. Salt 227 NY 200, 125 N.E. 94 [1919] the immortal Cardozo described such a future intent as "...the voluntary and unenforceable promise of an executory gift." Under either a theory of inter vivos or in causa mortis, Plaintiffs have failed to plead facts which could sustain a claim.
In their complaint Plaintiffs aver that "Glena... had given Plaintiffs an unrestricted license, or easement, to use the field for so long as they owned the B & B, to access the B & B." They further contend that, but for the actions of the Defendant Mr. Longworth, they would have "made sure" the transfer finalizing the easement/license/subdivision took place.
We remind Plaintiffs that they had no right to "make sure" of anything. Their only course would be to make a further request of the decedent to make a gift. We underline the two words to emphasize that the law's purpose is to enforce rights and obligations. The Plaintiffs' cannot presume to speak for Ms. Jagger when she has elected to speak to us through her revocable Trust. A revocable trust functions as a substitute Will and should be afforded the same deference ( Matter of Reynolds , 87 NY2d 633, 642 N.Y.S.2d 147 [1996]; In re Samuel A. Garrasi and Mary H. Garrasi Family Trust 104 AD3d 990, 961 N.Y.S.2d 594 [3rd Dept.,2013]; see, Sneddon , Karen J. (2014) "Speaking for the Dead: Voice in Last Wills and Testaments," St. John' s Law Review: Vol. 85: Iss. 2, Article 12).
We note that Ms. Jagger's revocable Trust (Defendants' Exhibit A) is a comprehensive document consisting of 27 pages. In directing the division of property upon her death, Ms. Jagger listed ten charities and one individual as beneficiaries. No provision was made for Plaintiffs or the Defendants. It will not be disturbed absent compelling circumstances. These circumstances have not been sufficiently pled by the Plaintiffs.
The allegations regarding the statements purportedly made by the Defendant after Ms. Jagger's death are also of questionable utility (i.e. that she intended to transfer the property interest).
We have no doubt that the Plaintiffs' affection for the decedent was sincere. Ms. Jagger returned that affection and expressed a desire to confer benefits upon them in the future, possibly during her life or after her death (it is this uncertainty which caused us to invoke Euripides). These intentions, however "...ceased by closure when the heart which willed and chose each benevolence was stilled by death. The charity was personal, not transmissible to the discretion of executor or next of kin" ( Arming v. Steinway et al ., 35 Misc.220, 71 NYS 810 [Supreme, Kings Co.1901]; see, Gruen v. Gruen 68 NY2d 48, 505 N.Y.S.2d 849 [1986]; Matter of Estate of Jordan 199 AD2d 998, 605 N.Y.S.2d 596 [4th Dept.1993]. Mr. Longworth was under no obligation to transfer the property at that time and his declining to do so, standing on its own, cannot form the basis for a cause of action.
We have considered the plaintiffs' remaining contentions and although they are argued with commendable eloquence, they have ultimately proven to be unpersuasive. In light of our holding which dismisses those claims sounding in Fraud, Promissory Estoppel, Constructive Trust and Contract, the causes of action for Specific Performance, Declaratory Judgement and for an Injunction must also fall. Defendants' motion is granted and the complaint is dismissed without prejudice.
The Court realizes that this decision leaves the Plaintiffs without a recovery. Both law and equity, however, are so set against their cause that they will have to console themselves with the knowledge that the kindness and friendship they displayed to a neighbor in need must suffice to be its own reward.This memorandum constitutes the decision and order of the Court.
DATED: APRIL 27, 2015
HON. JAMES HUDSON, A.J.S.C.
Oral promise of easement violated General Obligations Law § 5-703 and there was no basis for claim in equity