Opinion
No. 25265–2012.
2013-02-27
Suzanne Platenic COHEN, as Administratrix of the Estate of Michael Platenic a/k/a Michael J. Platenic, Petitioner, v. Joan A. FIENE and Tiaa–Cref, Respondents.
Josh H. Kardishch, Esq., Kardisch, Link and Associates PC, Carle Place, Attorney for Petitioner. Donald Novick, PC, Novick & Associates, Huntington, Attorney for Respondents.
Josh H. Kardishch, Esq., Kardisch, Link and Associates PC, Carle Place, Attorney for Petitioner. Donald Novick, PC, Novick & Associates, Huntington, Attorney for Respondents.
EMILY PINES, J.
Factual and Procedural Background
Suzanne Platenic Cohen, as Administratrix of the Estate of Michael Platenic a/k/a Michael J. Platenic, commenced the instant proceeding by filing a Verified Petition on August 17, 2012. On that same date, this Court (Quinn, J.) signed an Order to Show Cause with a temporary restraining order prohibiting TIAA–CREF from distributing the proceeds of certain accounts to Joan A. Feine (“Feine”) pending the hearing and determination of the Petition. By order dated October 23, 2012, this Court (Pines, J.) extended the temporary restraining order pending further order of the Court.
The Petition seeks a judgment: (1) directing TIAA–CREF to deposit the proceeds of the subject accounts into Court, (2) permanently enjoining TIAA–CREF from distributing the proceeds of the subject accounts to Feine, (3) permanently enjoining Feine from making any claim to the proceeds of the subject accounts, (4) declaring that Cohen is the sole and rightful beneficiary of the subject accounts, and (5) directing TIAA–CREF to pay the proceeds of the subject accounts to Cohen.
By Stipulation dated February 11, 2013, counsel for the parties, among other things, agreed to (1) convert this proceeding to an action, (2) substitute Cohen, individually, as Plaintiff in place and instead of Cohen as Administratrix of the Estate of Michael Platenic, and (3) treat Cohen's order show cause as seeking only a preliminary injunction. Thus, currently before the Court is Plaintiff's motion for a preliminary injunction (Mot.Seq.001).
According to the Verified Petition filed by Cohen, Michael Platenic (“Platenic”) died on May 24, 2012, at the age of 63. Platenic was never married and had no children. At the time of his death, his only known relative was his younger sister, Cohen. Platenic and Cohen had no other siblings. According to Cohen, she was close to Platenic throughout his life. Cohen alleges that throughout his life Platenic resided in a house in Sag Harbor that she owned with her husband, Jerald Cohen, M.D., and in several temporary dwellings in Suffolk County.
Pursuant to a Certificate of Appointment of Administrator issued by the Surrogate's Court, Suffolk County on July 11, 2012, Cohen was issued Letters of Administration for the Estate of Platenic.
According to Cohen, Platenic met Feine in 2002 while they were both undergoing kidney dialysis treatments at the same facility. Cohen alleges that while Platenic displayed and articulated a great deal of love and trust for Feine and referred to her as his girlfriend, Feine, who was approximately 15 years older than Platenic, consistently shunned Platenic's romantic advances. Cohen claims that Feine severed all contact with Platenic in 2009.
Cohen alleges that Platenic suffered from severe physical and mental disability as early as 2006, and that he showed signs of dialysis dementia as his kidney condition deteriorated. Cohen claims that Platenic lost the ability to cogitate lucidly, was unable to speak cogently, and was incapable of making rational and independent decisions of any significance or act of his own volition.
Platenic maintained several annuity accounts with TIAA–CREF. As of March 31, 2012, the total balance in the accounts was $492,227.65. Cohen alleges that until 2006, Cohen and/or her mother, who pre-deceased Platenic, were the designated beneficiaries of Platenic's accounts with TIAA–CREF. She claims that in 2006, Platenic changed the beneficiary designation on the accounts and named Feine as sole beneficiary.
In February 2011, Feine suddenly contacted Platenic to rekindle their acquaintanceship and she proceeded to call Platenic incessantly for months.
TIAA–CREF sent Platenic a Confirmation of Your Beneficiary Designations form dated May 25, 2011, indicating that the primary beneficiary for eight annuities/accounts with TIAA–CREF was Feine.
Cohen provides a copy of a letter to her she claims Platenic typed and signed in December 2011, which states:
I did some very bad things. I am so scared but my head hurts everyone is after me.
You are my sister and I am so confused you deserve everything but I did some bad stuff I think I can make it right but just in case I want you to have everything I own I will try to correct everything next year but I said some stupid things to people and I don't know how to make it right I also did some very mean things. Jerry was right something is wrong in my head im sorry
According to Cohen, the “bad things” Platenic referred to in the letter included having replaced Cohen with Feine as beneficiary of his TIAA–CREF accounts.
Cohen alleges that thereafter Platenic's physical and psychological condition worsened. He passed away five months later.
Cohen alleges that Platenic never developed normal, healthy and positive connections with peers, and that he had no friends. She claims Platenic often mistook even the most casual attention from women for romantic and intimate relationships, as he did with Feine, and that he was extremely trusting, susceptible and easily-lead. Cohen contends that if Platenic executed any changes to his TIAA–CREF accounts, he did so at a time when he was mentally incapable of comprehending his actions, and that he was unduly influenced, coerced, defrauded and tricked by Feine. If Feine executed any changes to the subject accounts, Cohen claims she did so without Platenic's clear and cogent authority and under circumstances that indicate undue influence and coercion, constituting fraud.
Cohen's husband, Jerald Cohen, M.D. (“Dr.Cohen”), submits an affidavit in support of the Verified Petition. Dr. Cohen, Platenic's brother-in-law, is board certified in internal medicine with a subspecialty of cardiovascular disease. He states that he spent a considerable amount of time with Platenic and had many opportunities to observe his physical and mental conditions, demeanor, behavior and cognitive functioning. He is aware that Platenic fought kidney disease for more than ten years, had two unsuccessful kidney transplants, and underwent dialysis treatment for at least ten years. Dr. Cohen claims that he always maintained a professional and personal eye on Platenic's condition, care and treatment. He knew Platenic to be very trusting, easily-lead and quite naive, and states that he often misread social cues and formed attachments to women who were mere acquaintances, as Dr. Cohen believes Platenic did with Feine.
According to Dr. Cohen, as early as 2006, Platenic was suffering from severe physical and mental disability and, as his kidney condition deteriorated, Platenic showed signs of dialysis dementia: he lost the ability to cogitate lucidly, he was unable to speak cogently, and he was incapable of making rational and independent decisions of any significance or acting of his own volition. In the Summer of 2010, Platenic became increasingly agitated and combative and, although he had periods of relative lucidity, Platenic descended into a “foggy” and confused state with episodes of erratic and irrational behavior becoming more frequent, consistent and prolonged.
On Thanksgiving Day 2010, Dr. Cohen observed Platenic sitting alone talking out loud as if to another person. Dr. Cohen realized that Platenic was losing his grip on reality and believed professionally that he was suffering from the effects of Lyme disease and dialysis dementia. When Dr. Cohen spoke to him, Platenic became violent, threw things against the wall, and cursed. Platenic stormed out of the house in a highly agitated state. Platenic barely communicated with Dr. Cohen and his wife for months thereafter, and when he did, he accused them of being evil and he ranted that “[his] walls were reeking with evil.”
Dr. Cohen states that he is certain that Platenic either lacked the mental capacity to make changes to his financial portfolio or that he was unduly influenced, coerced, defrauded and tricked by Feine, whose attention Platenic mistook for a close and confidential relationship.
Plaintiff contends that the Court should issue a preliminary injunction because the foregoing demonstrates (1) a likelihood that Cohen will succeed on the merits of her claims that Feine exerted undue influence over Platenic, committed fraud, and that Platenic was incompetent at the time he changed the beneficiaries of his TIAA–CREF accounts, (2) irreparable harm in that Feine is likely to dissipate the funds if TIAA–CREF is permitted to distribute the funds to her, and (3) a balance of the equities in favor of Cohen.
In opposition Feine contends, among other things, that Cohen has failed to demonstrate a likelihood of success on the merits as Cohen has not sufficiently alleged, or offered any proof of, undue influence or coercion by Feine. According to documents from TIAA–CREF submitted by Feine, she became the beneficiary of one account on March 5, 2006, and became the beneficiary of the remaining accounts on May 17, 2011. Feine argues that the Verified Petition and supporting papers fail to allege any specific instances where she did or said something that caused Platenic to change the beneficiary of his TIAA–CREF accounts. Feine characterizes Cohen's allegations as “conjecture and conclusory assumptions.” Feine points out that the letter from Platenic to Cohen makes no reference to Feine or to the subject accounts. Feine argues that Cohen has failed to demonstrate that Feine was in any way involved with the subject accounts. Feine provides an audio recording of a telephone conversation between Platenic and a TIAA–CREF representative on May 10, 2011, which Feine claims demonstrates that Platenic had an adept awareness of his assets and clearly communicated his desire to conduct certain transactions. Additionally, Feine contends that Cohen has failed to offer any proof of fraud or misrepresentation that caused Platenic to change the beneficiary designations. Feine also argues that Dr. Cohen's affidavit is insufficient to demonstrate that Platenic lacked mental capacity because Dr. Cohen, a cardiologist and Plaintiff Cohen's husband, was not Platenic's treating physician, nor did he state that he reviewed any of Platenic's medical records, and none of Platenic's medical records have been provided. Additionally, Feine contends that Cohen failed to offer any evidence that a confidential relationship existed between Platenic and Feine, other than conclusory speculation.
Feine claims that Cohen has failed to demonstrate any danger of irreparable injury as Cohen only alleges economic loss, which is compensable by money damages. Moreover, Feine argues that there is no factual support for Cohen's allegation that Feine is likely to dissipate the funds if they are released to her.
Discussion
“To establish entitlement to a preliminary injunction, a movant must demonstrate: (1) a likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; and (3) a balance of the equities in favor of granting the injunction” (Copart of Connecticut, Inc. v. Long Island Auto Realty, LLC, 42 AD3d 420, 421 [2d Dept 2007] citing Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862 [1990];Stockley v. Gorelik, 24 AD3d 535, 536 [2d Dept 2005] ). The party seeking a preliminary injunction has the burden of demonstrating the foregoing by clear and convincing evidence (Temple–Ashram v. Satyanandji, 84 AD3d 1158 [2d Dept 2011] ).
Here, Cohen has not demonstrated, by clear and convincing evidence, a likelihood of success on the merits, irreparable harm, or that a balance of the equities favors granting a preliminary injunction. In the context of a probate proceeding, the Appellate Division, Second Department recently stated in Matter of Favaloro (94 AD3d 989, 992–993 [2d Dept 2012] ):
A finding of undue influence requires a showing “that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist' “ (Matter of Walther, 6 N.Y.2d 49, 53 [1959], quoting Children's Aid Socy. of City of N.Y. v. Loveridge, 70 N.Y. 387, 394 [1877];see Matter of Engelhardt, 88 AD3d 997, 998 [2011];Matter of Herman, 289 A.D.2d 239, 240 [2001] ). Although undue influence may be established through circumstantial evidence, such evidence must be of a substantial nature, and an inference of undue influence “cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference” ' (Matter of Walther, 6 N.Y.2d at 54, quoting Matter of Ruef, 180 App.Div. 203, 204 [1917],affd223 N.Y. 582 [1918];see Matter of Swain, 125 A.D.2d 574, 575 [1986] ). Furthermore, “[a] mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized” (Matter of Walther, 6 N.Y.2d at 55;see Matter of Fiumara, 47 N.Y.2d 845, 846 [1979];Matter of Herman, 289 A.D.2d at 240).
The evidence submitted by Cohen in support of her motion for a preliminary injunction does not show that Feine exercised undue influence over Platenic with regard to the change of the beneficiary designations on Platenic's various accounts. Cohen has simply not submitted any evidence, direct or circumstantial, of any communications between Feine and Platenic with regard to the subject accounts or the change in beneficiary designations. Even accepting Cohen's allegation that Feine suddenly contacted Platenic in February 2011 to rekindle their acquaintanceship and proceeded to call Platenic incessantly for months, an inference of undue influence cannot reasonably be drawn from such circumstances.
Moreover, there is no evidence of fraud as Cohen has not submitted any evidence of any misrepresentation or a material omission of fact by Feine which was false and known by Feine to be false made for the purpose of inducing Platenic to rely upon it, and justifiable reliance by Platenic on the misrepresentation or material omission ( see Whitehead v. Town House Equities, Ltd., 8 AD3d 367 [2d Dept 2004] ).
Additionally, Cohen has not demonstrated, by clear and convincing evidence, a likelihood of success on the merits of her claim that Platenic lacked mental capacity at the time he changed his beneficiary designations. “[C]ontracts of a mentally incompetent person who has not been adjudicated insane are voidable” (Ortelere v. Teachers' Retirement Bd. of the City of New York, 25 N.Y.2d 196, 202 [1969] ). “[N]othing less than serious medically classified psychosis should suffice or else few contracts would be invulnerable to some kind of psychological attack” ( Id. at 206). Here, Cohen has not submitted an affidavit from a treating physician of Platenic or any of Platenic's medical records to support the claim of mental incompetence. The affidavit of Jerald Cohen, M.D. is insufficient because Dr. Cohen does not state that he ever examined and treated Platenic or that he ever reviewed any of Platenic's medical records. While the Court has no reason to doubt Dr. Cohen's personal observations, it has not been established that he is qualified to render an opinion with regard to Platenic's mental capacity as there has been no showing of Dr. Cohen's skill, training, education, knowledge, or experience in the field of psychiatry or psychology. Expert testimony should not be received where it has not been demonstrated that the expert is qualified to give testimony of the type requested (Garcia v. New York, 104 A.D.2d 438 [2d Dept 1984] ).
Finally, Cohen has also failed to establish irreparable harm in the absence of an injunction. “Irreparable injury, for purposes of equity, has been held to mean any injury for which money damages are insufficient' “ (DiFabio v. Omnipoint Communications, Inc., 66 AD3d 635, 636–637 [2d Dept 2009], quoting Matter of Walsh v. Design Concepts, 221 A.D.2d 454, 455 [2d Dept 1995] ). Here, Cohen effectively acknowledges that she seeks only money damages, i.e. the funds maintained in the subject accounts. Nevertheless, she contends that a preliminary injunction should be issued because Feine “has no reason to maintain [the funds] pending the outcome of this litigation” if TIAA–CREF is permitted to disburse the funds to her. Cohen has failed to submit any evidence to support her contention. There has been no showing that Feine is likely to dissipate the funds if they are distributed to her or that she would otherwise be unable to satisfy a money judgment against her in this action.
Accordingly, it is
ORDERED that the plaintiff's motion for a preliminary injunction (Mot.Seq.001) is denied; and it is further
ORDERED that the temporary restraining order dated August 17, 2012, issued by this Court (Quinn, J.), as modified by the order of this Court (Pines, J.) dated October 23, 2012, is hereby vacated.