Opinion
4139/2008.
Decided March 24, 2010.
Kingsley, Kingsley Calkins, Hicksville, New York, for Petitioner.
Nicolosi Nicklosi, LLP: Manhasset, New York, for Respondent.
Petitioner Christopher Fasulo ("Petitioner") moves for an order granting summary judgment on his petition seeking the return of property to the Estate of Pauline DelGatto based on fraud and undue influence.
Respondent Nora Bradley ("Respondent") cross-moves for an order denying Petitioner summary judgment, and granting her summary judgment dismissing the petition based on Decedent possessing the requisite mental capacity to execute the contested documents.
Petitioner is the Administrator C.T.A of the Estate. Respondent was the trustee and beneficiary of the revokable living trust created on January 17, 2008 to which Pauline DelGatto's ("Decedent") home was transferred by deed. On Decedent's death Respondent received all the principal of the trust.
Petitioner's motion is supported by the affirmation of his attorney, medical affirmations/reports, medical records, deposition testimony, and other exhibits. Respondent's cross-motion is supported by her affidavit, the affirmation of her attorney, medical records, the affidavit of Dr. Capobianco, depositions, and other exhibits.
Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law ( Andre v Pomeroy, 35 NY2d 361). The court's burden is not to resolve issues of fact, but merely to determine if such issues exist ( Dyckman v Barrett, 187 AD2d 553 [2d Dept 1992]). It is a drastic remedy that will only be granted where there is no triable issue of fact ( Barclay v Denckla, 182 AD2d 658 [2d Dept 1992]). The court, therefore, must construe the facts in a light most favorable to the non-moving party so as not to deprive that person of their day in court ( Russell v A. Barton Hepburn Hospital, 154 AD2d 796 [3d Dept 1989]).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make out a prima facie case requires denial of the motion regardless of the sufficiency of the opposing papers ( Winegrad v New York University Medical Center, 64 NY2d 851). If, however, a prima facie case is made, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial by tendering evidentiary proof in admissible form ( Romano v St. Vincent's Med. Ctr. of Richmond, 178 AD2d 467 [2d Dept 1991]).
Both Petitioner's attorney and Respondent's attorney submit an affirmation in support of their client's motion. An attorney's affirmation, however, is of no probative value on a summary judgment motion unless the attorney has first hand knowledge of the facts, or it is accompanied by documentary evidence that constitutes admissible proof ( Adam v Cutner Rathkopf, 238 AD2d 234 [1st Dept 1997]). Neither attorney represents that his affirmation is based on personal knowledge, and the deposition transcripts annexed to the motions are unsigned and unsworn and therefore do not constitute evidentiary proof in admissible form ( see Martinez v 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901 [2d Dept 2008]; LoCicero v Frisian, 150 AD2d 761 [2d Dept 1989]). The exception allowing an unsworn/unsigned deposition to be used as though fully signed-that the deponent refused or otherwise failed to sign the deposition within sixty days after delivery to him/her has not been alleged or shown, CPLR § 3116(a). Therefore the facts alleged and the arguments made in both the motion and the cross-motion premised on the deposition testimony cannot be considered in support of the motions.
Respondent in her cross-motion acknowledges it is her burden to prove Decedent had the requisite mental capacity to execute the documents. In support thereof Respondent relies upon the medical records-both hospital and nursing home; the deposition of Mr. Regan-the attorney draftsman; the deposition of Ms. Cetlin — the social worker who acted as a witness to the trust; and the deposition of Dr. Capobianco. As the Court cannot consider the deposition testimony, Respondent fails to make out a prima facie case regarding Decedent's mental capacity to execute the trust and the other documents. However even if the deposition testimony could be considered, Petitioner has by the affidavits of Dr. Shields, a neurologist and Dr. Eshkenazi, a psychiatrist, along with the hospital and the Ozanam Hall records established that a question of fact exists regarding Decedent's mental capacity.
Petitioner in his motion argues that a confidential relationship existed between Decedent and Respondent creating a presumption of fraud and undue influence which can only be overcome by clear and convincing evidence. Respondent in the cross-motion argues that it is the Petitioner who bears the burden of proving Respondent unduly influenced Decedent.
Petitioner in response argues Respondent's position is "blatantly erroneous" being based on will contests, while here the instrument created a gift implicating the law of inter vivos gifts placing a heavy burden on the recipient of the gift to disprove by clear and convincing evidence the presumption of fraud and undue influence.
To establish fraud it must be shown that a false statement was knowingly made that caused the decedent to dispose of his/her property in a manner differently from what he/she would have without the statement ( see Matter of Colverd , 52 AD3d 971 [3d Dept 2008]). Here Petitioner has failed to present any evidence of a knowingly false statement made by Respondent or any other person involved in the drafting or execution of the instruments.
As to the claim of undue influence, the Court notes that the law concerning gifts is no different from that of wills regarding undue influence. This notwithstanding, the instrument herein did not create an inter vivos gift. In order to establish an inter vivos gift, the donee must show that the donor intended to make a irrevocable present transfer of ownership such that the gift is effective immediately ( Gruen v Gruen, 68 NY2d 48); Matter of Bobeck, 143 AD2d 90 [2d Dept 1988]). In the present proceeding the property was not irrevocably transferred to the trust by the decedent, as pursuant to Article Eighth thereof the decedent retained the right at any time and without the consent of any person to amend or revoke the trust agreement.
For trusts, as with wills, the burden of proving undue influence rests on the party asserting its existence. "However, if a confidential relationship exists the burden is shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence" ( Hearst v Hearst , 50 AD3d 959 [2d Dept 2008], quoting Matter of Connelly, 193 AD2d at 603).Although the Court may not consider the deposition testimony or the attorneys' affirmations regarding the facts, the Court may consider the following pertinent facts conceded in Respondent's admissions to Petitioner's notice to admit contained in Exhibit 1 to Petitioner's motion.
1] By 2007 decedent had a vascular condition in her legs that made it difficult for her to walk.
2] By 2007 Respondent performed many recurring tasks for decedent, including shopping, transportation, and bathing and had a key to decedent's house where she frequently slept overnight.
3] At some time on or about January 8, 2008, Respondent contacted
Joseph P. Regan, Esq., to affect the transfer of decedent's property.
4] On January 9, 2008, a health care proxy was made designating Respondent as decedent's health care agent.
5] On January 17, 2008, Mr. Regan, Esq., appeared at Glen Cove Hospital where decedent was lying in bed, with three legal documents for which he procured her signature, a trust, a deed to decedent's home and a power of attorney all in favor of Respondent who was present in the hospital room at the time.
6] After their execution, the trust, deed and power of attorney were given by Mr. Regan to Respondent. Prior to January 2008, Mr. Regan had never met Decedent, never performed legal services for her, and had never spoken to her on the telephone at any time.
Although the Court finds Petitioner has not made out a prima facie case of undue influence upon which to grant summary judgment, it is clear there existed a confidential relationship between Decedent and Respondent ( see Matter of Mazak (Nauholnyk), 288 AD2d 682 [3d Dept 2001]). Indeed Decedent's treating physician, Dr. Capobianco, in his affidavit appended to Respondent's cross-motion avers, "[d]uring one of my conversations with the decedent, she made it clear that I was not to speak to members of her family and that the only person the decedent wanted me to speak to was her friend, Nora Bradley, who had been taking care of her". There is no question that Decedent reposed considerable trust and confidence in Respondent, the sine qua non of a confidential relationship. In this proceeding there is no close family relationship between the Decedent and Respondent to counterbalance the inference of undue influence arising from the confidential relationship ( compare Matter of Scher, 20 Misc 3d 1141(A) [Surr Ct, Kings County 2008]). Therefore the burden shifts to Respondent, the beneficiary under the instrument, to explain the circumstances of the bequest raising triable issues of fact ( Hearst v Hearst , 50 AD3d 959 , supra).
In addition there is the further issue that the Respondent was associated with the attorney who drafted the instruments, as it was Respondent who selected and contacted the attorney to effectuate the transfer of Decedent's property. The circumstances regarding the selection of Mr. Regan as the draftsman, and Respondent's role as a participant therein requires an explanation, and it is a question of fact as to whether the proffered explanation is adequate ( Matter of Burke, 82 AD2d 260 [2d Dept 1981]).
Accordingly both Petitioner's motion and Respondent's cross-motion for summary judgment are denied. The foregoing constitutes the decision and order of the court.