Opinion
No. 295.
Decided April 14, 2004.
(Petitioner) Mahon, Mahon Kerins 254 Nassau Boulevard Garden City, South, NY.
(Objectant) Anthony Thomas Scotto, Esq. 585 Stewart Avenue Garden, City, NY.
This is a motion for a preliminary injunction (CPLR 6301).
The decedent, Maggie Ruth Van Boom, died intestate on November 29, 2003. She was survived by two children, Michael Van Boom, the petitioner in this proceeding, and Sarie Van Boom, respondent.
It is not disputed that pursuant to SCPA 707 Michael Van Boom is disqualified from receiving letters of administration. He seeks the appointment of the Public Administrator in order to recover two properties on behalf of the estate: 44 Angevine Avenue, Hempstead, New York, and an unimproved parcel of real property located in Hamilton Township, New Jersey. As to a third property at 660 South Bayview Avenue, Freeport, New York petitioner contends that a constructive trust should be impressed on his behalf.
The decedent was hospitalized at Winthrop University Hospital on or about November 1, 2003. On November 21, 2003, the decedent allegedly appointed her sister, Lois Ricks, as her attorney-in-fact, giving her authority in real estate transactions. On the same date, the decedent allegedly appointed her daughter, Sarie Van Boom, as her attorney-in-fact giving her authority in a wide range of transactions excluding, however, real estate transactions.
On November 26, 2003, three days before the decedent's death, Lois Ricks conveyed title to all three aforesaid properties to Sarie Van Boom and Brian Corbett, Sarie's son, pursuant to the power of attorney. Petitioner asserts that Lois Ricks lacked the power to make the subject transfers contending that the authority granted for real estate transactions does not include the authority to make gifts. Petitioner further asserts that the Freeport property is actually his property and was held in the decedent's name at his request.
In support of his application for a preliminary injunction, petitioner submits the affidavit of Margaret Sprague, a licensed real estate broker. Ms. Sprague states that in the spring of 1998 she showed homes in the Freeport area to the petitioner. Ms. Sprague states that in June of 1998 the petitioner's parents, Walter Van Boom (who died on August 23, 2003) and Maggie Van Boom, purchased 660 South Bayview Avenue for the benefit of petitioner because of petitioner's poor credit rating and difficulty in obtaining a mortgage. Ms. Sprague attended the closing of title for the subject property and was told by Walter Van Boom and Maggie Van Boom that they agreed to have their names placed on the deed "only for show" in order that Michael could get a mortgage on his own home. Ms. Sprague maintained close contact with Walter Van Boom and Maggie Van Boom and stated that she was told by them on many occasions (as recently as October 2003) that the petitioner was the owner of the property and that they were the record owners of the property only as an accommodation to petitioner. In November 2001, Ms. Sprague obtained tenants for the subject property as the petitioner was moving out of the property. At the time a lease was executed for the Freeport property, Maggie Van Boom repeated to Margaret Sprague that the house belonged to the petitioner. In addition, the decedent showed her a book purportedly containing entries of petitioner's payments toward the house.
In opposition, Lois Ricks states that the decedent appointed her attorney-in-fact on November 21, 2003. Ms. Ricks states that the petitioner was abusive to his parents and was the subject of an order of protection in September 2003. Ms. Ricks states that she had conversations with the decedent wherein the decedent expressed her desire to have her assets go to her daughter and grandson. The decedent did not want petitioner, to whom she rendered financial assistance through the years, to receive any of her assets. Ms. Ricks further avers that when the decedent was hospitalized in November 2003, the decedent instructed her to deed the three properties (Hempstead, Freeport, New Jersey) to Sarie. Ms. Ricks signed the deeds transferring said properties.
Sarie Van Boom submits an affidavit wherein she states that her parents purchased the Freeport property in June of 1998, taking a mortgage to purchase the property which they continued to pay to the time of their deaths. In November 2001, her parents leased the property to tenants. Sarie Van Boom relates that her parents filed for orders of protection against the petitioner and as recently as September 19, 2003, the decedent obtained an order or protection against the petitioner. The affidavit further states that it was her understanding that the decedent asked the attorney-in-fact to transfer the properties to Sarie as the decedent did not want the petitioner to receive any of her assets.
In further opposition is the affidavit of Sarai Vias, a paralegal employed by the law firm of Martin Molinari. She states that on November 21, 2003 she met the decedent at Winthrop University Hospital to draft a Last Will and Testament. Decedent discussed the disposition of her property stating that she wished her real and personal property to go to her daughter Sarie and that she wanted to disinherit her son, the petitioner. The decedent identified assets both real property and personal property. She appeared alert and mentally competent. The decedent's condition subsequently deteriorated, rendering her physically unable to execute a Will.
The proceeding before the Court seeks the appointment of the Public Administrator and an order compelling separate accountings by Sarie Van Boom and Lois Ricks as attorneys-in-fact. No proceeding has been commenced to recover the New Jersey and Hempstead properties.
No proceeding has been commenced by Michael Van Boom to impress a constructive trust on the Freeport property.
CPLR 6301 authorizes the issuance of a preliminary injunction only within a judicial suit brought to obtain an adjudication of the merits of, and a substantive remedy, for a particular dispute ( Uniformed Firefighters Ass'n v. City of New York, 79 NY2d 236). The issues raised on this motion for a preliminary injunction are not encompassed within the application for an order directing the attorneys-in-fact to account and an order appointing the Public Administrator.
In addition, petitioner failed to meet the three-pronged test for a preliminary injunction. On a motion for a preliminary injunction, the movant must establish (1) a likelihood of ultimate success on the merits; (2) irreparable injury if the preliminary injunction is not granted, and (3) that a balancing of the equities is in his favor ( 1659 Ralph Ave. Laundromat Corp. v. Ben David Enterprises, LLC., 307 AD2d 288; Hoeffner v. John F. Frank, Inc., 302 AD2d 428).
As to the New Jersey and Hempstead properties, petitioner does not deny that the administrator of the estate would have authority to sell the property if it is recovered by the estate. If the property is sold by the respondent prior to recovery, petitioner has a remedy at law for damages. A preliminary injunction will not issue where there is an adequate remedy at law ( Kay v. Kay, 223 AD2d 684).
Further, petitioner failed to show a likelihood of success on the merits as to these two properties. Petitioner alleges that Lois Ricks lacked authority to make a gift of the real property because the power of attorney did not authorize gifts. As the power of attorney specifically authorizes transfers as to real property, the requirements of General Obligations Law 5-703 have been satisfied. A gift to the respondent can be established by clear proof of authorization ( De Belardino, 77 Misc2d 253, aff'd 47 AD2d 589; Matter of Griffin, 160 Misc2d 871). In addition, the affidavit of the paralegal supports the respondent's allegations.
As to the Freeport property, petitioner failed to demonstrate a likelihood of success on the merits.
The traditional requirements for a constructive trust are: 1) a confidential or fiduciary relation, 2) a promise, 3) a transfer in reliance thereon and 4) unjust enrichment ( Sharp v. Kosmalski, 40 NY2d 119). An interest in property for the purpose of a constructive trust may be established by the expenditure of time, funds and effort in connection with the property ( Matter of Bayside Controls, Inc., 295 AD2d 343; Lester v. Zimmer, 147 AD2d 340).
Petitioner states that he made mortgage payments on the property directly to the decedent. Evidence of such payment would support his claim that the property was being held for his benefit. The affidavit of the real estate broker states that she saw a book kept by the decedent in which she recorded payments received from Michael "toward the house". It is unclear, however, whether the alleged payments were mortgage payments, rent, repayment of a debt or payments made for some other reason. On this motion, petitioner was required to demonstrate a clear right to relief which is plain from the undisputed facts ( Mosseri v. Fried, 289 AD2d 545). The evidence submitted by petitioner does not meet this test.
In her opposition papers, Sarie Van Boom includes a request that letters of administration be issued to her. Obviously, Sarie VanBoom, if appointed administratrix, would not be expected to commence a discovery proceeding against herself to invalidate the transfer of the two parcels of realty (Hempstead and New Jersey) which Michael claims should be returned to the estate.
With respect to such a potential proceeding, SCPA 702(8) provides the necessary vehicle for the appointment of a separate administrator with limited letters to commence a proceeding in which the primary administrator would have a conflict. While SCPA 1001 provides a definite order of priority to follow for the right to general letters of administration, there is no such order required by SCPA 702 for limited letters. Nevertheless, Michael, who would be the logical choice ( Matter of Teah, 166 Misc 2d 976) is disqualified because of a felony conviction which has apparently resulted in his request that the Public Administrator be given limited letters instead.
This is essentially a dispute between two siblings and avoiding any involvement by the Public Administrator may be desirable. If the Public Administrator is appointed and she selects her own attorney and the proceeding against Sarie is unsuccessful, it is unlikely such attorneys could claim a fee from the estate (2 Warren's Heaton on Surrogates' Courts, § 33.09, citing Matter of Rella, NYLJ, Mar. 16, 1999, at 28), especially from an estate which may otherwise be limited in size. Also, there is no provision in the statute for the payment of commissions to a limited administrator (SCPA 2307, SCPA 103). The Public Administrator of course, could opt to retain Michael's attorney to perform the services and merely act as the nominal petitioner. However, the subject of the payment of attorneys' fees would remain problematic. Since the court has the discretion to do so, another person such as Michael's attorney, might be a likely candidate for limited letters, if he is so advised. To explore the situation, a conference will be held on April 27, 2004 at 10:00 a.m. at which time all attorneys including the attorney for the Public Administrator's office should attend.
There appearing to be no further challenge to Sarie serving as the general administratrix for all other purposes, letters of administration will issue to her upon qualifying according to law and filing an adequate bond. In regard to the Freeport property which Michael claims is, in fact, his property, it would appear that a separate proceeding, individually by him against both the estate and his sister Sarie, would be the proper vehicle ( see SCPA 2105 which encompasses not only a claim against an estate for property but any other person's claim to the property). The proceeding would, accordingly, be brought by Michael individually against his sister Sarie individually and as administratrix of the estate. Since, if Michael fails to establish that he is individually entitled to the Freeport property, he may alternatively claim the transfer to his sister was nevertheless invalid and the property should be returned to the estate, the individual proceeding by Michael should proceed first and be resolved before any proceeding commenced by a limited administrator.
Accordingly, the motion for a preliminary injunction is denied. The temporary restraining order is vacated.
Settle order and separate decree appointing administratratrix.