Opinion
322006.
Decided September 30, 2005.
Wilkie Wilkie, Esqs., Hempstead, NY, Attorneys for petitioner.
John M. McFaul, Esq., Mineola, NY, Attorney for petitioner.
Denis P. McAllister, Esq., Garden City, NY, Attorney for respondent.
This is a motion by the respondent for summary judgment in a discovery proceeding (SCPA 2103). The petitioner seeks recovery of premises transferred by deed dated February 16, 1998 as an estate asset.
John Puckett died intestate on September 11, 2001. He resided at that time at 27 Titus Road, Glen Cove, New York where he cohabited with the respondent, Regina Bogan. On or about December 2, 1997, the decedent obtained title to 27 Titus Road, Glen Cove, New York. Two and one-half months later, on February 16, 1998, decedent conveyed by deed the real property to himself and respondent as joint tenants.
Letters of administration issued to decedent's son, Michael Puckett. Petitioner commenced the instant proceeding alleging that the subject premises are an estate asset. Respondent has answered the petition by alleging that the subject property is solely her own, obtained by her by reason of her joint ownership of the subject property with the decedent as evidenced by the February 16, 1998 deed.
In support of the motion to dismiss the proceeding, respondent submits her own affidavit, the February 16, 1998 deed and the deposition of Georgia Deplas, Esq., the attorney who represented the decedent with regard to the February 16, 1998 conveyance. Respondent states that she and decedent cohabited from August 1995 until September 11, 2001 and that they lived together at 27 Titus Road, Glen Cove, New York from December 1997 until the decedent died. Respondent asserts that decedent held title to the property in his own name on December 2, 1997 and, on February 16, 1998, the decedent conveyed the real property to himself and herself as "joint tenants." The deed recited "valuable consideration" for the transfer. The deed was subsequently recorded. Respondent further states that at no time prior to his death did decedent revoke the deed. Respondent claims ownership of the subject property as the surviving tenant of the real property.
Georgia Deplas, Esq. was deposed by the attorney for the petitioner. Ms. Deplas, an attorney at the law firm where respondent is employed, testified that the decedent approached her concerning placing respondent's name on the deed. No one else was present. Ms. Deplas stated that she explained to decedent the different ways the property can be held, explaining joint ownership and that the decedent wanted the property to be held as joint tenants. The attorney testified that a deed to that effect was prepared and that decedent came to the office on February 16, 1998 and executed the deed which was subsequently recorded.
In opposition to the motion, petitioner submits the affidavits of decedent's former wife and daughter wherein they each state that based upon conversations with the decedent shortly before his death, it was their understanding that decedent owned the home and that he was not happy with respondent. Petitioner submits a comparative market analysis of the subject property dated September 8, 2001 where decedent is listed thereon as owner as well as a real estate consultation certificate indicating that the decedent was interested in a sale of the premises. Petitioner contends that the decedent and respondent enjoyed a confidential relationship as evidenced by the respondent's application to obtain compensation from the "September 11th Victim Compensation Fund of 2001" denoting herself as the "surviving domestic partner" of the decedent. Petitioner, citing excerpts from the deposition of Georgia Deplas, Esq., contends that the attorney only represented the decedent, never discussing the deed transaction with the respondent. Petitioner urges that the respondent cannot waive the attorney-client privilege and offer communications that the decedent had with the attorney against the decedent's estate. Petitioner argues that issues of fact exist as to whether decedent intended to make a gift of the premises to respondent, precluding the grant of summary judgment.
In reply, respondent urges that summary judgment in her favor is appropriate as the deed, recorded on April 16, 1999, created a joint tenancy with the right of survivorship (EPTL 6-2.1). Respondent contends that petitioner failed to raise an issue of fact as to decedent's capacity or that any undue influence was exerted upon the decedent by the respondent. Respondent asserts that on February 16, 1998, the date of the deed, decedent and respondent dealt on terms of equality and that the transfer of the deed was free and voluntary.
Summary judgment is often termed a drastic remedy and should not be granted if there is any doubt as to the existence of triable issues of fact (cf. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). 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 ( Alvarez v. Prospect Hosp., 68 NY2d 320; Matter of Lucia, 2 AD3d 638). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Zuckerman v. City of New York, 49 NY2d 557).
A threshold issue is presented herein, i.e., the assertion by the estate of the attorney-client privilege. It is settled that confidential communications made between an attorney and a client during the course of a professional relationship are privileged and will not be disclosed without the permission of the client (CPLR 4503 [a]; see Spectrum Systems Intl. Corp. v. Chemical Bank, 78 NY2d 371, 377; Priest v. Hennessy, 51 NY2d 62, 29 [1980]). An estate representative may, in the interest of the estate, waive the attorney-client privilege of the deceased client ( cf. Mayorga v. Tate, 302 AD2d 11, 14; Matter of Colby, 187 Misc 2d 695).
However, waiver of the privilege may be necessary to determine the validity of a claim or defense alleging undue influence ( Matter of Seelig, 302 AD2d 721). It is well settled that a waiver of the attorney-client privilege may be found "where the client places the subject matter of the privileged communication in issue . . . or where the invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information" ( New York TRW Title Ins. v. Wade's Canadian Inn Cocktail Lounge, 225 AD2d 863, 864; see also A. Weis Real Estate Corp v. Katz, 295 AD2d 547; Jakobleff v. Cerrato, Sweeney Cohn, 97 AD2d 834, 835; State-Wide Capital Corp. v. Superior Bank FSB, 2000 US Dist. Lexis 18552 [SDNY]). Here, petitioner is challenging the validity of the February 16, 1998 transfer of the subject property by the decedent asserting that either undue influence was exerted by the respondent or that decedent did not intend to make a gift, yet seeks to withhold the pivotal communication made between the decedent and his attorney on that subject. Under such circumstances, the privilege has been impliedly waived by the estate as such communications are central to the claim of undue influence. The court will, therefore, consider the contents of the deposition of the decedent's attorney.
The deposition testimony of the attorney clearly demonstrates that the execution of the deed was the free and voluntary act of the decedent and that decedent was not subject to the exertion of any undue influence. Moreover, the testimony shows that the decedent clearly intended to hold title to the property with respondent as joint tenants with the right of survivorship. With this testimony, coupled with the recording of the deed and the presumption of delivery arising therefrom ( cf. Myers v. Key Bank, N.A., 68 NY2d 744; Rametta v. Kazlo, 68 AD2d 579), the respondent established her entitlement to summary judgment. Even assuming a confidential relationship between decedent and respondent as petitioner asserts, respondent has met her heightened burden that the transfer was free from any undue influence. Since petitioner failed to raise any issue of fact as to decedent's capacity or the existence of undue influence, respondent is entitled to summary judgment dismissing the proceeding ( see Zuckerman v. City of New York, 49 NY2d 557).
The above constitutes the order of this court.